United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.H., Appellant

and

DEPARTMENT OF THE NAVY, NORFOLK 

NAVAL SHIPYARD, Portsmouth, VA, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 17-0592

Issued: May 1, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 23, 2017 appellant filed a timely appeal from a December 16, 2016 merit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 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 the claim.3

 

1 Appellant filed a timely request for oral argument in this case. By order dated July 25, 2017, the Board, after 

exercising its discretion, denied his request for oral argument as the issues could adequately be addressed based on a 

review of the case record. Order Denying Request for Oral Argument, Docket No. 17-0592 (issued July 25, 2017). 

2 5 U.S.C. § 8101 et seq.

3 The record provided to the Board includes evidence received after OWCP issued its December 16, 2016 decision. 

The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore, 

the Board is precluded from considering this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).
2

ISSUES

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

amount of $603.77 for the period April 1 through 6, 2013; and (2) whether appellant was at fault 

in the creation of the overpayment, thereby precluding waiver of recovery of the overpayment. 

FACTUAL HISTORY

On August 25, 2011 appellant, then a 46-year-old shipwright, filed a traumatic injury claim 

(Form CA-1) alleging that, on August 24, 2011, he stepped into a hole in the flight deck and injured 

his right knee in the performance of duty. OWCP accepted the claim for a tear of the medial 

meniscus, tear of the lateral meniscus, tear of anterior cruciate ligament and loose body in the right 

knee. It subsequently expanded acceptance of the claim to include osteoarthritis right knee. 

Appellant stopped work on February 28, 2012 to undergo OWCP-approved right knee 

arthroscopy. OWCP paid him wage-loss compensation on the supplemental rolls commencing 

February 2, 2012.

Effective September 1, 2012, OWCP paid appellant wage-loss compensation benefits 

through its periodic compensation rolls every 28 days. In a September 25, 2012 letter, it outlined 

appellant’s entitlement to compensation benefits and his responsibility to return to work. OWCP

notified appellant that he was to immediately inform OWCP upon his return to work to avoid an 

overpayment of compensation. It also noted that, if he worked during any period covered by a 

compensation payment, then he had to return the payment to OWCP.

By letter dated March 27, 2013, OWCP advised appellant that on December 22, 2010 the 

Treasury Department issued a regulation that required all federal payments to be made 

electronically. Since appellant received his compensation payments by paper check, OWCP 

requested that he sign up to receive his payments by direct deposit by June 1, 2013. 

Appellant returned to full-time modified work with restrictions on April 1, 2013. 

However, wage-loss compensation was paid through May 4, 2013. The record reflects that 

appellant was paid $603.77 for the period April 1 through 6, 2013 and $2,817.60 for the period 

April 7 through May 4, 2013.

In a preliminary determination dated June 26, 2013, OWCP determined that appellant 

received a $3,421.37 overpayment of compensation because he returned to full-time work on 

April 1, 2013, but received compensation for total disability from April 1 through May 4, 2013. It

noted that appellant had received temporary total disability benefits in the amount of $5,635.20 for 

the period March 10 through May 4, 2013, but was only entitled to receive temporary total 

disability benefits for the period March 10 through 31, 2013 in the amount of $2,213.83. OWCP

calculated that for the period April 1 through May 4, 2013, appellant was overpaid $3,421.37 

($5,635.20-$2,213.83). A fiscal worksheet indicated that appellant received a check dated April 6, 

2013 for the period April 1 through 6, 2013 in the amount of $603.77. Appellant also received a 

check dated May 4, 2013 for the period April 7 through May 4, 2013 in the amount of $2,817.60. 

The overpayment amount was calculated as $3,421.37. OWCP further found that he was with 

fault as he knew or should have known that he was not entitled to wage-loss compensation 
3

following his return to work. It provided appellant with an overpayment recovery questionnaire 

(Form OWCP-20) for his completion, along with appeal rights. 

On July 18, 2013 appellant requested a hearing before an OWCP hearing representative. 

He indicated that the overpayment occurred through no fault of his own and that he had returned 

the check for the period April 7 through May 4, 2013 in the amount of $2,817.60. A telephonic 

hearing was held January 14, 2014. During the hearing, appellant testified that he had returned the 

check for $2,817.60, which an employing establishment representative confirmed. The hearing 

representative then addressed the outstanding overpayment of $603.77 for the period April 1 

through 6, 2013. 

Appellant testified that he did not think he was overpaid the $603.77. He asserted that 

OWCP should have deducted that amount from the check that was sent to him on April 6, 2013. 

Appellant explained that he believed that he was entitled to the money because of “everything I’ve 

had to go through for the last two and a half years putting up with this after getting hurt.” He also 

stated that because of his injury, he could no longer do side work to earn money.

With regard to his finances, appellant testified that he earned $1,413.00 every two weeks. 

Appellant’s expenses were: $1,100.00 for mortgage; $91.67 for property tax; $600.00 for food; 

$250.00 for utilities; $850.00 for gas and car expenses; $30.00 for dog food. He indicated that,

while he was supposed to pay a rental fee of $700.00 per month, he only pays it when he can. The 

hearing representative requested documentation of the expenses, noting that the amount claimed 

for food was higher than the average. 

By decision dated March 26, 2014, an OWCP hearing representative determined that 

appellant received a $603.77 overpayment of compensation because he returned to full-time work 

on April 1, 2013, but he was paid compensation for total disability through April 6, 2013.4 The 

hearing representative further found that appellant was at fault in the creation of the overpayment 

as he accepted a payment that he knew or should have known was incorrect. The hearing 

representative found that, as appellant’s monthly income exceeded his expenses by $139.83, he 

could make monthly repayments in the amount of $50.00 until the overpayment debt was fully 

satisfied.

By decision dated December 16, 2016, OWCP finalized its determination that appellant 

had received an overpayment of compensation in the amount of $603.77, as he had returned to 

work on a full-time basis on April 1, 2013, but continued to receive compensation for total 

disability through April 6, 2013. It found that he was at fault in the creation of the overpayment 

as he had accepted a payment he knew or reasonably should have known was incorrect. OWCP 

further found that the overpayment debt could be recovered in $50.00 per month repayments, as 

ordered in the hearing representative’s decision. 

 

4 The hearing representative noted that, following the hearing, appellant had submitted a copy of the check dated 

May 4, 2013 with the word “VOID” written across it. OWCP received the check on August 13, 2014. 
4

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.5

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.6 OWCP’s regulations state in pertinent part: 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.7 A 

claimant is not entitled to receive temporary total disability and actual earnings for the same 

period.8 OWCP’s procedures provide that an overpayment of compensation is created when a 

claimant returns to work, but continues to receive wage-loss compensation.9

ANALYSIS -- ISSUE 1

OWCP placed appellant on the periodic compensation rolls as of September 1, 2012. 

Appellant continued to receive compensation for total disability every 28 days, through 

May 4, 2013. The record indicates, however, that he had returned to full-time, modified work on 

April 1, 2013. Appellant does not contest and the record reflects that he returned to full-time, 

modified work on that date. A claimant is not entitled to receive compensation for total disability 

during a period in which he or she had actual earnings.10 Therefore, the Board finds that an 

overpayment of compensation was created in this case. 

The amount of the overpayment was originally calculated to be $3,421.37 for the period 

April 1 through May 4, 2013. However, appellant returned a check in the amount of $2,817.60 for 

the period April 7 through May 4, 2013. Thus, the overpayment amount was properly reduced to 

$603.77 for the period April 1 through 6, 2013. This represented the net compensation appellant 

was paid for the six calendar days from April 1 to 6, 2013. No contrary evidence was submitted. 

The Board accordingly finds that OWCP properly found that an overpayment of compensation in 

the amount of $603.77 was created during the period April 1 through 6, 2013. 

 

5 5 U.S.C. § 8102.

6

Id. at § 8116(a).

7 20 C.F.R. § 10.500.

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

9 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).

10 See M.S., Docket No. 16-0289 (issued April 21, 2016); D.B., Docket No. 15-0258 (issued February 1, 2016).
5

LEGAL PRECEDENT -- ISSUE 2

Section 8129(a) of FECA11 provides that, where an overpayment of compensation has been 

made because of an error or fact of law, adjustment shall be made by decreasing later payments to 

which an individual is entitled. The only exception to this requirement is a situation which meets 

the tests set forth as follows in section 8129(b): Adjustment or recovery by the United States may 

not be made when 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.12 Accordingly, no waiver of an overpayment is possible if the claimant is with 

fault in helping to create the overpayment. 

In determining whether an individual is with fault, section 10.433(a) of OWCP’s 

regulations13 provides in relevant part: 

“An individual is with fault in the creation of an overpayment who: 

(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 furnish 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.”

14

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.15

Even if an overpayment resulted from negligence by OWCP, this does not excuse the 

employee from accepting payment, which the employee knew or should have been expected to 

know she was not entitled.16

 

11 5 U.S.C. § 8129(a).

12 Id. at § 8129(b).

13 20 C.F.R. § 10.433(a).

14 Id.

15 Id. at § 10.433(b); Neill D. Dewald, 57 ECAB 451 (2006); Y.Z., Docket No. 15-1704 (issued February 4, 2016).

16 Diana L. Booth, 52 ECAB 370 (2001).
6

ANALYSIS -- ISSUE 2

OWCP applied the third standard, as set forth above, in determining that appellant was at 

fault in creating the overpayment. In order for it to establish that appellant was at fault in the 

creation of the overpayment of compensation, OWCP must establish that, at the time appellant 

received the compensation check in question, he knew or should have known that the payment was 

incorrect.17

Each recipient of compensation benefits is responsible for taking all reasonable measures 

to ensure that payments he or she receives are proper18 and 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.19 In the September 25, 2012 acceptance letter, OWCP clearly advised appellant that he 

was to immediately inform it upon his return to work to avoid an overpayment of compensation 

and that, if he worked during any period covered by a compensation payment, he had to return the 

payment to OWCP. 

Thus, appellant should have known that he could not receive wage-loss compensation after 

his return to work.20 Although the employing establishment or OWCP may have been notified of 

appellant’s pending return to work, appellant did not return the compensation check he received. 

The Board has explained that when a claimant returns to work and subsequently receives 

a compensation check in the mail covering a period of employment, knows or should know that 

he is not entitled to such compensation, but decides nonetheless to cash or deposit the check, the 

cashing or depositing of the check has established the acceptance necessary to establish fault.21 

Therefore the Board concludes that appellant should have known that, at the time he 

returned to work on April 1, 2013, he was not entitled to continue to receive compensation and 

had an obligation to return payments he knew or should have known were incorrect.22 Under 

section 10.433(a) of OWCP’s regulations, appellant is at fault. As he was at fault in the creation 

of the overpayment, appellant is not eligible for waiver of recovery of the overpayment of 

compensation.23

With respect to recovery of the overpayment in compensation, the Board’s jurisdiction is 

limited to reviewing those cases where OWCP seeks recovery from continuing compensation 

benefits under FECA. As appellant was no longer receiving wage-loss compensation when he 

 

17 Linda E. Padilla, 45 ECAB 768, 772 (1994).

18 C.V., Docket No. 16-0986 (issued September 1, 2016); Y.Z., supra note 15.

19 Id.

20 Id.

21 See William F. Salmonson, 54 ECAB 152 (2002). 

22 Supra note 18. 

23 Id.
7

returned to work, the Board does not have jurisdiction with respect to the recovery of the 

overpayment under the Debt Collection Act.24

CONCLUSION

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

$603.77 for the period April 1 through 6, 2013 because he continued to receive compensation after 

his return to work. The Board further finds that appellant was at fault in the creation of the 

overpayment, thereby precluding waiver of recovery of the overpayment.

ORDER

IT IS HEREBY ORDERED THAT the December 16, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: May 1, 2018

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

 

24 Cheryl Thomas, 55 ECAB 610 (2004).