United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.H., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS AFFAIRS MEDICAL CENTER, 

St. Louis, MO, Employer 

__________________________________________ 

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Docket No. 15-0762 

Issued: July 13, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On February 18, 2015 appellant, through counsel, filed a timely appeal from a 

January 20, 2015 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. 

ISSUE 

The issue is whether appellant was at fault in the creation of a $7,374.32 overpayment of 

compensation that occurred from November 11, 2013 to March 8, 2014. 

FACTUAL HISTORY 

On May 6, 2010 appellant, then a 54-year-old housekeeping aid, filed a traumatic injury 

claim alleging that on that date he injured his right hip, knee, wrist, ankle, shoulder, and neck 

when he fell in the performance of duty. OWCP accepted the claim for sprains of the right wrist, 

 1

 5 U.S.C. § 8101 et seq. 
2

right ankle, right knee, lumbar spine, and neck, a contusion of the right hip, an aggravation of 

preexisting osteoarthritis of the right knee, and displacement of an intervertebral lumbar disc 

without myelopathy. 

On February 7, 2011 appellant underwent a right total knee arthroplasty.2

 He stopped 

work on February 7, 2011 and returned to work on March 10, 2011. OWCP paid appellant 

compensation for temporary total disability. 

By decision dated December 7, 2012, OWCP granted appellant a schedule award for a 21 

percent permanent impairment of the right leg. The award ran for 60.38 weeks from 

September 14, 2012 to November 11, 2013.3

By letter dated December 11, 2012, OWCP advised appellant that his schedule award 

would run through November 11, 2013, but that he could request to receive the remainder of his 

schedule award as a lump sum if he was either working or receiving benefits from the Office of 

Personnel Management (OPM). 

On December 23, 2012 appellant notified OWCP that he wanted to receive the remainder 

of his schedule award in a lump sum. On January 4, 2013 OWCP terminated his schedule award 

compensation payments as he had elected a lump sum. 

By letter dated January 27, 2013, appellant requested that OWCP continue paying him 

monthly schedule award compensation. On February 6, 2013 OWCP informed him that it was 

attempting to reinstate monthly payments. In a February 8, 2013 internal memorandum, it noted 

that it had paid appellant $7,424.21 before stopping his schedule award compensation and that he 

was entitled to compensation for an additional 302.36 days. OWCP indicated that its system did 

not allow a schedule award to be reinstated once terminated and advised that it had placed 

appellant on the periodic rolls effective February 10, 2013. It determined that it would issue 

compensation for the period January 13 to February 9, 2013 on February 10, 2013 and noted that 

it would need to manually terminate the schedule award prior to November 6, 2013. 

On January 13, 2014 appellant left a message for OWCP to telephone him about his 

compensation. In a memorandum documenting a January 13, 2014 telephone call, OWCP 

advised him “of payment status and that he should have received payment dated January 11, 

[2014] per [compensation] history.” 

On May 29, 2013 appellant accepted a job offer from the employing establishment. 

The record indicates that appellant was paid schedule award compensation through the 

periodic rolls until March 9, 2014. 

 2

 By decision dated December 6, 2010, OWCP denied appellant’s claim for compensation for time lost from work 

due to a medical appointment on September 13, 2010. In a decision dated April 21, 2011, it denied his claim for 

four hours of time lost for a medical appointment on October 18, 2011. 

3

 OWCP did not provide a copy of the December 7, 2012 decision to appellant’s authorized representative. On 

December 10, 2012 counsel inquired when OWCP was going to issue a schedule award decision. On January 22, 

2013 OWCP provided him with a copy of the December 7, 2012 schedule award decision. 
3

On March 25, 2014 OWCP identified an overpayment of compensation because 

appellant’s schedule award payments had not been manually terminated on November 6, 2013, 

but instead continued through March 8, 2014. It noted that he was working full time while 

receiving his schedule award payments. 

On April 10, 2014 OWCP advised appellant of its preliminary determination that he 

received an overpayment of compensation in the amount of $7,347.32 because he received 

schedule award compensation from November 11, 2013 through March 8, 2014 to which he was 

not entitled. It calculated the overpayment by determining the amount he received from 

November 17, 2013 to March 8, 2014 to find an overpayment of $7,347.32. OWCP further 

advised appellant of its preliminary determination that he was at fault in the creation of the 

overpayment. It requested that he complete the enclosed overpayment recovery questionnaire 

and submit supporting financial documents. Additionally, OWCP notified appellant that, within 

30 days of the date of the letter, he could request a telephone conference, a final decision based 

on the written evidence, or a prerecoupment hearing. 

On April 15, 2014 appellant requested a prerecoupment hearing and telephone 

conference. In an overpayment recovery questionnaire, he challenged the existence and amount 

of the overpayment and the finding that he was at fault. Appellant maintained that he telephoned 

OWCP in January 2014 to inquire about the payments and OWCP told him that changing his 

lump-sum request to a request to receive monthly payments altered the date the schedule award 

expired. OWCP advised him that when he received less than the regular payment that would be 

the final check. 

During the telephone prerecoupment hearing, held on November 10, 2014, appellant and 

counsel stipulated as to fact and amount of the overpayment. Counsel noted that appellant was 

not informed that his schedule award payments were being changed to payments on the periodic 

rolls. He also asserted that OWCP did not advise him of the change. 

On December 8, 2014 appellant submitted financial information. 

By decision dated January 20, 2015, an OWCP hearing representative determined that 

appellant was at fault in the creation of an overpayment of compensation in the amount of 

$7,347.32 from November 11, 2013 to March 8, 2014. She found that the December 7, 2012 

decision put him on notice of the ending date of his schedule award compensation and that he 

consequently knew or should have known that he was not entitled to compensation after that 

date. The hearing representative instructed appellant to repay the overpayment in full. 

LEGAL PRECEDENT 

Under OWCP regulations, waiver of the recovery of an overpayment may be considered 

only if the individual to whom it was made was not at fault in accepting or creating the 

overpayment.4 The fact that the overpayment was the result of error by OWCP or another 

government agency does not by itself relieve the individual who received the overpayment of 

 4

 20 C.F.R. § 10.433(a). 
4

liability for repayment if the individual also was at fault for receiving the overpayment.5

 Each 

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

that payments he or she received from OWCP are proper. The recipient must show good faith 

and exercise a high degree of care in reporting events that 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 

with respect to 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; (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).6 

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 is being overpaid.7

ANALYSIS 

Appellant, through counsel, stipulated that he received an overpayment of compensation 

in the amount of $7,347.32 for the period November 11, 2013 to March 8, 2014, but challenged 

the finding that he was at fault in creating the overpayment. OWCP determined that he was at 

fault because he accepted compensation benefits that he knew or should have known to be 

incorrect. It found that the December 7, 2012 schedule award decision clearly identified the 

expiration date of the schedule award as November 11, 2013. The Board finds, however, that 

OWCP did not support its finding of fault because of its interruption of his schedule award 

payments after he requested a lump-sum payment. This complicated the payment process. 

Appellant requested a lump-sum payment in lieu of monthly compensation for his 

schedule award. On January 4, 2013 OWCP stopped paying him compensation for his schedule 

award based on his request for a lump sum. Appellant subsequently advised OWCP that he did 

not want a lump-sum payment for the remainder of his schedule award. OWCP notified him on 

February 6, 2013 that it was attempting to reinstate his schedule award payments. It again began 

paying appellant monthly schedule award compensation on February 10, 2013. The February 10, 

2013 payment covered the period January 13 to February 9, 2013. OWCP paid appellant 

schedule award compensation using the periodic rolls as the computer system did not allow it to 

reinstate the schedule award payments. It did not, however, stop payments on November 11, 

2013 but instead continued to pay him compensation for the schedule award until March 8, 2014. 

In response to OWCP’s preliminary determination that he was at fault in creating an 

overpayment of compensation, appellant asserted that in January 2014 he telephoned OWCP to 

ask about the continuing payments. He maintained that OWCP advised him that changing the 

 5 Id. at § 10.435(a). 

6 Id. at § 10.433(a); see Kenneth E. Rush, 51 ECAB 116 (1999). 

7 Id. at § 10.433(b); see also L.J., 59 ECAB 264 (2007). 
5

lump-sum request back to a request for monthly payments altered the termination date of the 

schedule award payments. Appellant related that OWCP informed him that he would recognize 

the final installment because the benefit amount would be less than the usual amount of prior 

payments. 

The record indicates that on January 13, 2014 appellant left a message requesting to 

speak with OWCP about his compensation. In a memorandum of a telephone call dated 

January 13, 2014, an OWCP claims examiner advised appellant that based on the compensation 

history he should have received the payment dated January 11, 2014. The January 13, 2014 

report of telephone call, while not definitively establishing that OWCP told him that the ending 

date of his schedule award had changed, lends support to his allegation. 

Additionally, OWCP informed appellant on February 6, 2013 that it had not yet 

reinstated his schedule award payments, given the confusion, it was reasonable for him to believe 

that the correct date of his last schedule award payment had been altered by the interruption. 

Consequently, it has not shown that he knew or should have known at the time he received the 

schedule award payments subsequent to November 11, 2013 that they were inaccurate. OWCP 

thus erred in finding that appellant was at fault in creating the overpayment. 

The Board will set aside OWCP’s January 20, 2015 decision on the issue of fault. On 

remand, OWCP must determine whether appellant is eligible for waiver of recovery of the 

overpayment. The Board will remand the case for further development of the evidence regarding 

his current financial circumstances and for an appropriate final decision on the issue of waiver. 

CONCLUSION 

The Board finds that OWCP has not established that appellant was at fault in creating the 

overpayment of compensation in the amount of $7,347.32 for the period November 11, 2013 to 

March 8, 2014. The case is remanded for further development on the issue of waiver of recovery 

of the overpayment. 
6

ORDER 

IT IS HEREBY ORDERED THAT the January 20, 2015 decision of the Office of 

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

remanded for further proceedings consistent with this decision of the Board. 

Issued: July 13, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees' Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees' Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees' Compensation Appeals Board