United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.F., Appellant 

and 

DEPARTMENT OF THE NAVY, 

CAMP SMEDLEY D. BUTLER, 

Okinawa, Japan, Employer 

__________________________________________ 

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Docket No. 16-1718 

Issued: August 21, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On August 24, 2016 appellant filed a timely appeal from a June 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 of compensation in the 

amount of $3,605.65 because he received compensation for the period August 9, 2007 through 

May 9, 2009 at the same time he received earnings from other employment; and (2) whether he 

was at fault in creating the overpayment, thereby precluding waiver of recovery of the 

overpayment. 

On appeal appellant contends that the amount deducted from his continuing 

compensation was never readdressed or adjusted after the overpayment amount was reduced 

 1

 5 U.S.C. § 8101 et seq. 
2

from $12,074.98 to $3,605.65 and that OWCP continued to make deductions of $150.00 from 

each of appellant’s compensation checks after the overpayment had been paid in full. 

FACTUAL HISTORY 

This case has previously been before the Board.2 The facts of the case as presented in the 

prior decisions are incorporated herein by reference. The relevant facts are as follows. 

On April 14, 2003 OWCP accepted that appellant, then a 46-year-old athletic director, 

sustained hypertensive pneumonitis due to poor air circulation in his office. It paid wage-loss 

compensation and medical benefits on the periodic rolls commencing May 20, 2003. Appellant 

received his compensation benefits by check. 

By letter dated June 26, 2003, OWCP explained how the compensation rate was 

determined. It also informed appellant in this letter that in order to minimize the possibility of an 

overpayment of compensation, he should notify OWCP immediately when he returned to work. 

It noted that FECA provides that a partially disabled employee shall be paid compensation based 

on the difference between the monthly pay and the employee’s wage-earning capacity, as 

determined by the employee’s actual earnings or by OWCP. 

While appellant was receiving full-time wage-loss compensation under FECA he was 

also working part time at Ritz Camera beginning August 10, 2007 making $7.00 per hour and as 

a part-time athletic assistant in the summer of 2017 earning $8.21 per hour, for the Maryland 

National Park and Planning Commission. These jobs were noted by the vocational rehabilitation 

counselor assigned to appellant’s case at that time. 

On May 27, 2009 OWCP issued an informal loss of wage-earning capacity (LWEC) 

determination. It found that as appellant had returned to work as an imaging specialist with 

wages of $210.00 per week effective August 10, 2007, his monetary compensation would be 

reduced based on his actual earnings. Effective June 7, 2009, OWCP reduced appellant’s 

compensation payment every 28 days from $2,358.00 to $1,904.00. 

On September 30, 2009 OWCP issued a preliminary determination of an overpayment of 

compensation. It calculated that, for the period August 9, 2007 through May 29, 2009, appellant 

had received a total of $55,008.08 in wage-loss compensation whereas he was only entitled to 

$42,933.10. This resulted in an overpayment of compensation in the amount of $12,074.98. 

OWCP also made a preliminary determination that appellant was with fault in the creation of the 

overpayment as he accepted payments he knew or should have known were incorrect. 

In a February 23, 2010 decision, OWCP finalized the preliminary overpayment 

determination. It determined that appellant received an overpayment of compensation in the 

amount of $12,074.98 because he received compensation for the period August 9, 2007 through 

May 9, 2009 at the same time he received earnings from other employment. OWCP also found 

that appellant was at fault in the creation of the overpayment as he accepted payments he knew 

 2

 Docket No. 10-2163 (issued March 18, 2011); Docket No. 14-0165 (issued September 25, 2014). 
3

or should have known were incorrect. It commenced deductions of $150.00 from each of 

appellant’s continuing compensation payments. 

On August 24, 2010 appellant filed an appeal with the Board. By decision dated 

March 18, 2011, the Board found that OWCP had not followed proper procedures in that it had 

not properly served appellant with the preliminary findings of overpayment at his correct 

address. The Board noted that OWCP sent the preliminary notice of overpayment to appellant at 

his old address, despite the fact that appellant had provided OWCP with proper notice of his new 

address. The Board further found that OWCP had not adequately substantiated the amount of 

overpayment, $12,074.08. Accordingly, the Board set aside OWCP’s overpayment decision and 

remanded the case for further consideration consistent with the decision.3

In a revised preliminary notice of overpayment dated June 24, 2011, OWCP calculated 

that appellant had received an overpayment of compensation only in the amount of $3,605.65. It 

noted that at the time of its initial overpayment decision, appellant had not submitted evidence of 

actual earnings. Accordingly, OWCP recalculated the amount of overpayment based on 

appellant’s actual wage and earning statements pursuant to the LWEC decision issued on 

May 27, 2009. It determined that for the period August 1, 2007 through January 1, 2009, 

appellant received compensation in the amount of $43,587.65. During this period, appellant 

actually earned $9,028.00. OWCP determined that averaging appellant’s actual earnings over 17 

months resulted in a monthly income of $531.06 (weekly pay rate of $132.77). It determined 

that appellant would have been entitled to $39,982.00 of FECA wage-loss benefits, based on his 

actual earnings, and that therefore the overpayment was $3,605.65 ($43,587.65 minus 

$39,982.00). OWCP noted that his seasonal summer earnings could not be considered. OWCP 

also found that appellant was at fault in the creation of the overpayment as he received dual 

payments. Appellant was provided appropriate options to dispute the overpayment. He did not 

respond to the revised preliminary overpayment determination at that time, although the June 24, 

2011 preliminary determination was mailed to his address of record. 

By letter to OWCP dated May 3, 2013, appellant contended that the deductions from his 

compensation had not stopped despite the Board’s March 18, 2011 decision. He also noted that 

OWCP had not contacted him since the Board’s decision and that he had been unable to reach 

the claims examiner. Appellant argued that there were still discrepancies in the amount of wageloss compensation he should have received following the appeal, the total amount of 

overpayment, and the amount actually paid back to date. 

In a decision dated July 19, 2013, OWCP finalized the overpayment of compensation in 

the amount of $3,605.65 for the period August 1, 2007 through January 1, 2009 due to 

appellant’s receipt of compensation payments concurrently with earnings from other 

employment. It also found that he was at fault in the creation of the overpayment and, therefore, 

not entitled to waiver of recovery. 

By letter dated September 12, 2013, OWCP advised appellant that the entire overpayment 

of compensation in the amount of $3,605.65 had been paid in full and that the overpayment 

account had been closed. 

 3

 Docket No. 10-2163 (issued March 18, 2011). 
4

On October 30, 2013 appellant filed an appeal with the Board from the July 19, 2013 

decision. On September 25, 2014 the Board issued an Order Remanding Case. The Board 

determined that OWCP had never addressed the specific issue in appellant’s May 3, 2013 letter 

wherein he contended, inter alia, that the deductions from his compensation were not proper, 

that he had tried unsuccessfully to contact OWCP, and that there were still discrepancies in the 

amount of the overpayment compared to what he had already paid.4

By decision dated June 23, 2016, OWCP finalized the overpayment of compensation in 

the amount of $3,605.65. It also found appellant was at fault in the creation of the overpayment 

because he accepted earnings while also receiving wage-loss compensation under FECA. 

OWCP also noted that the overpayment had been paid in full. OWCP acknowledged appellant’s 

May 3, 2013 letter and determined that appellant had been properly notified of the overpayment 

and that no evidence had been received to dispute the overpayment amount. It also incorporated, 

by reference, the June 24, 2011 preliminary decision, which provided an explanation as to how 

the overpayment had been calculated. 

LEGAL PRECEDENT -- ISSUE 1 

Section 8102(a) of FECA5

 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 duty.6

 A claimant is not entitled to receive temporary total disability benefits and 

actual earnings for the same time period.7

 

An overpayment of compensation occurs when a claimant returns to work and continues 

to receive compensation.8 Section 8129(a) of FECA provides that 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.9

ANALYSIS -- ISSUE 1 

The Board, having duly considered the matter, finds that OWCP properly determined that 

appellant received an overpayment of compensation in the amount of $3,605.65 because 

appellant received wages for the period August 9, 2007 through May 9, 2009 while also 

receiving total disability compensation. 

During the period August 1, 2007 through January 1, 2009, appellant received wages 

from part-time employment in the amount of $9,028.00. As previously noted, a claimant is not 

 4

 Docket No. 14-0165 (issued September 25, 2014). 

5 Supra note 1. 

6 Id. at § 8102(a). 

7

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

8 R.G., Docket No. 16-1129 (issued December 27, 2016). 

9

 5 U.S.C. § 8129(a). 
5

entitled to receive temporary total disability benefits and actual earnings for the same time 

period.10 Had proper adjustments been made to his disability compensation to reflect his parttime employment, appellant would have received $39, 982.00 for this time period. However, 

appellant received compensation for this period in the amount of $43,587.65. The difference 

between these two amounts, $3,605.65, is the amount of the overpayment, as properly calculated 

by OWCP. Accordingly, the Board will affirm the fact and the amount of the overpayment. 

Appellant contended that his wage-loss compensation payments had never returned to 

that which he received before the overpayment case. However, the reduction of his payments 

were based on the informal LWEC decision dated June 7, 2009 which reduced his monthly 

payment from $2,538.00 to $1,904.00. That decision is not before the Board at this time.11

LEGAL PRECDENT -- ISSUE 2 

An individual who is found at fault in either accepting or creating an overpayment is not 

eligible for a waiver of recovery of overpayment.12 A benefits recipient will be at fault if the 

individual: (1) made an incorrect statement as to a material fact which he knew or should have 

known to be incorrect; (2) failed to provide information which he knew or should have known to 

be material; or (3) accepted a payment which he knew or should have known to be incorrect.13

ANALYSIS -- ISSUE 2 

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.14 

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

to ensure that payment he receives from OWCP is proper.15 Appellant was informed by 

OWCP’s letter dated June 26, 2003 that FECA provided that a partially disabled employee shall 

be paid compensation based on the difference between the monthly pay and employee’s wageearning capacity. Thus, appellant should have been aware that he was not entitled to receive full 

wage-loss compensation during the time of his part-time employment. The fact that OWCP may 

have been negligent in issuing the payments does not mitigate this finding.16 

As appellant was at fault in the creation of the overpayment, he is not eligible for waiver 

of recovery of the overpayment. 

 10 K.L., Docket No. 16-1490 (issued May 26, 2017). 

11 See 20 C.F.R. §§ 501.2(c) and 501.3. 

12 5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433(a) and 10.434. 

13 Id. at § 10.433(a). 

14 Id. 

15 K.M., Docket No. 16-0802 (issued November 23, 2016). 

16 Id. 
6

CONCLUSION 

The Board finds that OWCP properly determined that appellant received an overpayment 

of compensation in the amount of $3,605.65 because he received compensation for the period 

August 9, 2007 through May 9, 2009 at the same time he received earnings from other 

employment. OWCP also properly determined that appellant was at fault in creating the 

overpayment, thereby precluding waiver of recovery of the overpayment. 

ORDER 

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

Workers’ Compensation Programs is affirmed.17

Issued: August 21, 2017 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 17 Although the Board recognizes that the full amount of the overpayment has been repaid, upon return of the case 

record, OWCP shall verify that only the amount of the overpayment, i.e., $3,605.65, was recovered from appellant’s 

continuing compensation payments.