United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.O., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Bedford Park, IL, Employer 

__________________________________________ 

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Docket No. 15-1004 

Issued: July 28, 2015 

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 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On March 30, 2015 appellant filed a timely appeal from a March 2, 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.2

ISSUES 

The issues are: (1) whether OWCP properly determined that appellant received an 

$11,864.54 overpayment of compensation; and (2) whether OWCP properly determined that 

appellant was at fault in the creation of the overpayment of compensation, thereby precluding 

waiver of recovery of the overpayment. 

 

 1 5 U.S.C. §§ 8101-8193. 

2

 Appellant submitted additional evidence after OWCP’s March 2, 2015 decision, but the Board cannot consider 

such evidence for the first time on appeal. See 20 C.F.R. § 501.2(c). 
2

FACTUAL HISTORY 

OWCP accepted that on January 14, 2011 appellant, then a 50-year-old rural carrier, 

sustained a left arm sprain and left medial epicondylitis when he twisted his arm at work on that 

date. Appellant received disability compensation on the daily rolls beginning March 5, 2011. 

He later began to receive disability compensation on the periodic rolls. 

On June 5, 2014 appellant completed an EN1032 form which asked him various 

questions about his employment, self-employment, and volunteer work for the 15 months prior 

to the signing of the form. 

On August 25, 2014 OWCP received an August 13, 2014 document from the Office of 

Personnel Management (OPM) which indicated that appellant was not being paid as an OPM 

annuitant. 

On October 2, 2014 OWCP received an OPM form, signed by appellant on 

September 26, 2014, in which he indicated that effective September 26, 2014 he was electing to 

receive benefits under the Federal Employees’ Retirement System (FERS) in preference to any 

benefits to which he might be entitled under FECA. 

In a January 2, 2015 letter to OWCP, the employing establishment indicated that 

appellant may be in receipt of both OPM and FECA benefits. It attached a copy of the election 

form completed by appellant on September 26, 2014.3

In a January 26, 2015 notice, OWCP advised appellant of its preliminary determination 

that he received an $11,864.54 overpayment of compensation because of his election “to receive 

benefits from [OPM] effective September 26, 2014 while you were still receiving compensation 

for total disability on the periodic rolls through January 10, 2015.”4

 It also made a preliminary 

determination that he was at fault in the creation of the overpayment because he accepted a 

payment that he knew or reasonably should have known was incorrect.5 OWCP advised 

appellant that he could submit evidence challenging the fact, amount, or finding of fault and 

request waiver of the overpayment. It requested that he complete and return an enclosed 

financial information questionnaire within 30 days even if he was not requesting waiver of the 

overpayment.6

 3

 The record also contains a January 2, 2015 letter to OPM in which OWCP asked OPM to reimburse it for FECA 

benefits paid to appellant between September 26, 2014 and January 10, 2015. 

4

 A worksheet of record indicates that appellant received $11,864.54 in FECA benefits between September 26, 

2014 and January 10, 2015. 

5

 OWCP asserted that the language of an EN1032 form that appellant previously completed put him on notice that 

he could not receive OPM and FECA benefits at the same time. The form stated, “I understand that I must 

immediately report to OWCP any improvement in my medical condition, any employment, any change in the status 

of claimed dependents, any third party settlement, and any change in income from federally assisted disability or 

benefit programs.” 

6

 It does not appear that appellant submitted any evidence within the allotted period. 
3

In a March 2, 2015 decision, OWCP determined that appellant received an $11,864.54 

overpayment of compensation. It also found that he was at fault in the creation of the 

overpayment of compensation, thereby precluding waiver of recovery of the overpayment. 

LEGAL PRECEDENT -- ISSUE 1 

Section 8102(a) of 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 duty.7

 Section 8129(a) of FECA provides, in pertinent part: 

“When an overpayment has been made to an individual under this subchapter 

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 an 

individual is entitled.”8

Section 8116(a) of FECA provides that while an employee is receiving compensation or 

if he has been paid a lump sum in commutation of installment payments until the expiration of 

the period during which the installment payments would have continued, the employee may not 

receive salary, pay or remuneration of any type from the United States, except in limited 

specified instances.9

 In D.R.,

10 the Board determined that OWCP’s finding of an overpayment of 

compensation for a given period had not been established because it had not shown that the 

claimant actually received both OPM and FECA benefits for that period. 

ANALYSIS -- ISSUE 1 

OWCP based its overpayment finding on its determination that appellant received 

impermissible dual OPM and FECA benefits for the period September 26, 2014 to 

January 10, 2015. While the record reflects that appellant received FECA benefits for this 

period, OWCP did not show that he received OPM benefits for this period. There is no 

document in the record establishing as a matter of fact when appellant received OPM benefits, 

the periods for which he received such benefits, or the amounts of benefits he received.11 

Therefore, the evidence of record does not contain documentation showing that appellant 

received OPM benefits between September 26, 2014 and January 10, 2015. As it was alleged 

that appellant received dual benefits during this period, OWCP has not met its burden to 

establish the fact of an $11,864.54 overpayment for this period.12 The case shall be remanded to 

 

 7 Id. at § 8102(a). 

 8 Id. at § 8129(a). 

 9 Id. at § 8116(a). 

 10 Docket No. 13-1531 (issued October 21, 2013). 

11 The election form completed by appellant on September 26, 2014 would not show that he actually began to 

receive OPM benefits on any particular date. 

12 See D.R., supra note 10. 
4

OWCP for further development of this matter to be followed by the issuance of an appropriate 

decision. 

CONCLUSION 

The Board finds that the case is not in posture regarding whether appellant received an 

$11,864.54 overpayment of compensation.13

ORDER 

IT IS HEREBY ORDERED THAT the March 2, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded to OWCP for proceedings 

consistent with this decision of the Board. 

Issued: July 28, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 13 Given that the case is not in posture regarding whether OWCP properly determined that appellant received an 

$11,864.54 overpayment of compensation, it is premature for the Board to consider whether OWCP properly 

determined that he was at fault in the creation of any overpayment.