United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

White Plains, NY, Employer

__________________________________________

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Docket No. 17-1081

Issued: November 15, 2017

Appearances: Case Submitted on the Record

Rita H. Patrick, 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 April 24, 2017 appellant, through his representative, filed a timely appeal from a 

March 16, 2017 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 an overpayment of compensation in the 

amount $2,370.42 because he received duplicate wage-loss compensation checks for the period 

 

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

December 14, 2014 to January 10, 2015; (2) whether OWCP properly found him at fault and thus 

not entitled to waiver of recovery of the overpayment; and (3) whether OWCP properly required 

recovery of the overpayment by deducting $100.00 every 28 days from his continuing 

compensation payments.

On appeal appellant’s representative asserts that, because she did not receive information 

requested from OWCP until February 15, 2017, she was unable to determine if appellant was 

with or without fault. 

FACTUAL HISTORY

On December 16, 2001 appellant, then a 27-year-old mail processor, suffered back pain 

when reaching into a hamper. He did not stop work. OWCP adjudicated the claim OWCP under 

File No. xxxxxx122 as a short-form closure case. In a claim adjudicated by OWCP under File 

No. xxxxxx507, OWCP accepted a May 31, 2002 injury for right shoulder strain, right shoulder 

impingement syndrome, and lumbosacral strain. Appellant stopped work on the date of injury, 

had right shoulder arthroscopic repair on October 28, 2002, and returned to modified duty on 

November 26, 2003. 

On March 15, 2008 appellant filed a traumatic injury claim (Form CA-1), alleging that on 

February 20, 2008 he injured his lower back and extremities when bending over and lifting tubs 

of mail. He stopped work that day and returned on March 5, 2008. OWCP adjudicated the claim 

under File No. xxxxxx487, the master file. 

On March 26, 2008 appellant filed a recurrence claim (Form CA-2a) under File No. 

xxxxxx507, alleging a recurrence of disability on March 23, 2008 when he was unable to 

perform work duties due to pain. By decision dated May 22, 2008, OWCP denied the recurrence 

claim. Appellant, through his representative, timely requested a hearing with OWCP’s Branch of 

Hearings and Review. He returned to modified duty on June 3, 2008. 

On August 26, 2008 OWCP denied the traumatic injury claim, adjudicated under File No. 

xxxxxx487. Appellant’s representative timely requested a hearing.

On December 16, 2008 an OWCP hearing representative affirmed the May 22, 2008 

decision that denied appellant’s recurrence claim, under File No. xxxxxx507. Under File No. 

xxxxxx507, appellant filed a second recurrence claim on September 5, 2008, alleging that he 

sustained a recurrence of disability on September 4, 2008. He did not return to work. In a 

May 5, 2009 decision, OWCP denied this recurrence claim. Appellant timely requested a 

hearing. 

On April 1, 2009 OWCP informed appellant that his traumatic injury claim, adjudicated 

under File No. xxxxxx487, had been accepted for aggravation of thoracic or lumbosacral neuritis 

or radiculitis; aggravation of sprain of shoulder and upper arm, unspecified site, right; and 

aggravation of disorder of bursae and tendons in shoulder region, unspecified. 

In a November 12, 2009 decision, adjudicated under File No. xxxxxx507, an OWCP 

hearing representative found that appellant had established a recurrence of disability on 

September 4, 2008 and reversed the May 5, 2009 decision. The hearing representative noted that 
3

appellant’s February 20, 2008 traumatic injury claim had been accepted. Appellant returned to 

part-time modified duty on March 27, 2010 and received wage-loss compensation for partial 

disability.

3

 

OWCP accepted a recurrence of total disability beginning February 4, 2011 when 

appellant had repeat right shoulder arthroscopic surgery. Appellant received appropriate wageloss compensation and was placed on the periodic compensation rolls.

4

Under File No. xxxxxx487, on December 21, 2012 OWCP additionally accepted right 

knee medial meniscus tear and bilateral strain of knee and leg. On January 24, 2013 appellant 

had arthroscopic partial medial and lateral meniscectomy of the right knee. 

In letters dated May 23, 2013 and December 15, 2014, OWCP informed appellant of a 

Department of Treasury regulation that required that all federal payments be made electronically. 

It noted that appellant still received his FECA compensation by paper check form and attached 

an electronic fund transfer (EFT) form, urging him to submit it so that his compensation could be 

paid electronically. Appellant did not return an EFT form to OWCP at that time.

Appellant telephoned OWCP on January 20, 2015 indicating that he had not received his 

FECA compensation check for January 10, 2015. He confirmed this in correspondence dated 

January 21, 2015, and asked that another check be issued. 

On January 26, 2015 a tracer was initiated by OWCP, and a stop payment was placed on 

the check. Appellant was informed that a replacement check would be issued, and this was done 

on February 13, 2015. 

On May 20, 2015 appellant had authorized left knee arthroscopic surgery to repair a torn 

lateral meniscus. 

On July 9, 2015 appellant submitted EFT information for direct deposit of his FECA 

compensation. 

An April 19, 2016 tracer report indicates that check number xxxxxxxx7251, issued on 

February 13, 2015 in the amount of $2,370.42 was paid on February 24, 2015, and that check 

number xxxxxxxx1499, issued on January 10, 2015 in the amount of $2,370.42 and was paid on 

July 29, 2015. Appellant was the payee on both checks. Both checks covered the period 

December 14, 2014 to January 10, 2015. The record indicates that even though the January 10, 

2015 was cancelled, it was cashed after cancellation. The report also contains a list of 

 

3 By decision dated June 1, 2010, OWCP found that an overpayment of compensation in the amount of $716.28 

had been created because appellant continued to receive compensation through April 10, 2010 after his return to 

work on March 27, 2010. The overpayment was deducted from appellant’s continuing compensation. 

4

In an August 3, 2012 decision, OWCP found that appellant received a $7,381.07 overpayment of compensation 

because health benefit deductions were not made from September 1, 2008 through April 9, 2010 and February 5, 

2011 through December 17, 2011. Appellant was found without fault, but waiver was denied. OWCP deducted 

$100.00 every 28 days from appellant’s continuing compensation to collect the overpayment. On November 13, 

2013 the Board dismissed the representative’s appeal of the August 3, 2012 decision because there was no indication 

that appellant authorized the representative before the Board. Docket No. 13-628 (issued November 13, 2013).
4

appellant’s FECA compensation from October 18, 2014 to January 9, 2016 and copies of both 

checks, endorsed for deposit by appellant to the same account. 

On October 13, 2016 OWCP issued a preliminary determination that appellant received 

an overpayment of compensation in the amount of $2,370.42 because he received duplicate 

FECA compensation payments for the period December 14, 2014 to January 10, 2015. OWCP 

found him at fault because he accepted a payment that he knew or reasonably should have known 

was incorrect. Appellant was provided an overpayment action request form and an overpayment 

recovery questionnaire (OWCP Form 20). 

Appellant submitted an overpayment action request dated November 2, 2016 in which he 

requested a prerecoupment hearing. He disagreed that an overpayment occurred or that he was at

fault, alleging that OWCP failed to establish that an overpayment existed. In an attached 

overpayment recovery questionnaire (OWCP Form 20) appellant listed monthly income of 

FECA compensation of $2,364.78, monthly expenses of $2,243.00, and assets totaling $150.00. 

On November 7, 2016 appellant’s representative requested copies of benefit statements 

for the period December 14, 2014 through November 11, 2016, copies of all checks cashed for 

that period, copies of OWCP policies and procedures for replacing checks, and copies of any 

documents or request appellant may have submitted relevant to an overpayment. 

In correspondence dated January 30, 2017, addressed to appellant’s representative, 

OWCP noted that benefit statements were issued by the Department of the Treasury, but that it 

was forwarding a copy of appellant’s compensation history for the period December 14, 2014 

through November 12, 2016. It further explained that it had no access to cashed checks as all 

payments were issued by the Department of the Treasury, but forwarded a copy of a check 

cashed for the period December 14, 2014 to January 10, 2015. OWCP explained that procedures 

for replacing checks were listed on OWCP CA-1032 forms and enclosed a copy for her attention. 

As to her request for documents or requests submitted by appellant relevant to an overpayment, 

since there was more than one overpayment declared, more specific information was needed. 

At the hearing, held on February 10, 2017, appellant’s representative agreed that copies 

of two checks were attached to the preliminary overpayment decision. She requested that the 

original checks should be forwarded for review. Appellant testified that he did not recall 

requesting a second check in writing and did not recall cashing two checks. The hearing 

representative noted that the two checks indicated that they were for the same period, 

December 14, 2014 to January 10, 2015. 

By decision dated March 16, 2017, an OWCP hearing representative finalized the 

preliminary overpayment determination, finding that appellant received an overpayment of 

compensation in the amount of $2,370.42 because he received and cashed duplicate 

compensation checks for the same compensation period. The hearing representative further 

found that appellant was at fault and thus not entitled to waiver of recovery of the overpayment. 

Repayment in the amount of $100.00 was to be deducted every 28 days from his continuing 

compensation. 
5

LEGAL PRECEDENT -- ISSUE 1

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.5 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.6 

ANALYSIS -- ISSUE 1

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

of $2,370.42 for the period December 14, 2014 to January 10, 2015.

The record indicates that on January 10, 2015 appellant was issued a check in the amount 

of $2,370.42. As shown on its face, this check covered the period December 14, 2014 to 

January 10, 2015. Contrary to appellant’s assertion on appeal, he advised OWCP by telephone 

on January 20, 2015 and in writing on January 21, 2015 that he did not receive his check. 

OWCP issued a stop payment on January 26, 2015, and on February 13, 2015 appellant was 

issued a replacement check in the amount of $2,370.42 for the period December 14, 2014 to 

January 10, 2015. Appellant deposited this check into his account on February 24, 2015. The 

record also indicates that on or before July 29, 2015 appellant received the check dated 

January 10, 2015, which, even though a stop payment was issued, he successfully deposited this 

check into his account on July 29, 2015. The record thus establishes that duplicate payments 

were made for the period December 14, 2014 to January 10, 2015, and both checks were 

deposited by appellant. Therefore, an overpayment of compensation in the amount of $2,370.42 

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.”

7

Section 10.433(a) of OWCP 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 

 

5

5 U.S.C. § 8102(a).

6

Id. at § 8129(a).

7

Id. at § 8129; see Linda E. Padilla, 45 ECAB 768 (1994).
6

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).”

8

To determine if 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.9

ANALYSIS -- ISSUE 2

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

the third standard, because he accepted a payment he knew or should have known was incorrect. 

As noted, it initially issued a paper check for $2,370.42 on January 10, 2015 to cover 

compensation for the period December 14, 2014 to January 10, 2015. Appellant reported this 

check missing, and was issued a duplicate check on February 13, 2015. He deposited the 

February 13, 2015 check on February 24, 2015. The record also indicates that appellant 

subsequently deposited the check dated January 10, 2015 on July 29, 2015. The record contains 

an image of the face of each check, noting that the period of compensation covered was 

December 14, 2014 to January 10, 2015. The record also contains an image of the back of each 

check which clearly displays appellant’s signature.10 Appellant thus knew or reasonably should 

have known at the time he deposited the second check on July 29, 2015 that he was not entitled 

to receive a second check for the same period for which he had already received the 

compensation by duplicate check.

Therefore, the evidence of record establishes that appellant knew or reasonably should 

have known at the time he deposited the January 10, 2015 check on July 29, 2015 that he was not 

entitled to this duplicate compensation payment, since he had previously deposited a check 

covering the same compensation period on February 24, 2015. The record establishes appellant 

accepted a payment at the time of deposit on July 29, 2015, which he knew or should have 

 

8

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

9

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

10 Compare his signature on the overpayment action request signed and dated by appellant on November 2, 2016. 
7

known to be incorrect.11 Thus, the Board finds that appellant was at fault in creating the 

overpayment and thus waiver of recovery of the overpayment is precluded.

12

LEGAL PRECEDENT -- ISSUE 3

Section 10.441 of OWCP’s regulations provides that when an overpayment has been 

made to an individual who is entitled to further payments, the individual shall refund to OWCP 

the amount of the overpayment as soon as the error is discovered or his or her attention is called 

to the same. If no refund is made, OWCP shall decrease later payments of compensation, 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 hardship.13

ANALYSIS -- ISSUE 3

The record supports that, in requiring repayment of the $2,370.42 overpayment by 

deducting $100.00 every four weeks from appellant’s compensation payments, OWCP took into 

consideration the financial information submitted by him as well as the factors set forth in 

section 10.441(a) of its regulations and found that this method of recovery would minimize any 

resulting hardship on appellant. Therefore, it properly required repayment of the overpayment 

by deducting $100.00 from appellant’s compensation payments every four weeks.14

Finally, as to the representative’s assertion on appeal regarding the untimely receipt of 

requested information, the record indicates that on November 7, 2016 she requested specific 

information from OWCP. On January 30, 2017 OWCP forwarded the information requested that 

was under its purview and informed her that some of the requested information was under the 

purview of the Department of the Treasury. On appeal the representative admits that she 

received the information from OWCP on February 15, 2017. The final decision was not issued 

until March 16, 2017. The record does not indicate that appellant or his representative contacted 

OWCP between the February 10, 2017 hearing and issuance of the final overpayment decision 

on March 16, 2017.

 

11 S.M., Docket No. 16-1127 (issued December 12, 2016). See also 20 C.F.R. § 10.430(a)-(b) (notes that OWCP 

includes on each periodic check a clear indication of the period for which payment is being made; by these means, 

OWCP puts the recipient on notice that a payment was made and the amount of the payment).

12 Id.

13 20 C.F.R. § 10.441; see Steven R. Cofrancesco, 57 ECAB 662 (2006).

14 Id.; see C.P., Docket No. 13-1341 (issued January 6, 2014).
8

CONCLUSION

The Board finds that OWCP properly determined that appellant was at fault in the receipt 

of an overpayment of compensation in the amount of $2,370.42, and that OWCP properly 

required recovery of the overpayment by deducting $100.00 every 28 days from his continuing 

compensation payments.

ORDER

IT IS HEREBY ORDERED THAT the March 16, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 15, 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