United States Department of Labor

Employees’ Compensation Appeals Board

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P.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Baltimore, MD, Employer

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Docket No. 18-1438

Issued: February 1, 2019

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 July 17, 2018 appellant filed a timely appeal from a July 2, 2018 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 this case.

ISSUES

The issue are: (1) whether appellant received a $3,042.24 overpayment of compensation 

for the period September 11 through October 14, 2017; and (2) whether OWCP properly 

determined that she was at fault in the creation of the overpayment and thus not entitled to waiver

of recovery of the overpayment.

 

1 The record also contains a January 29, 2018 OWCP decision denying appellant’s request for four hours of wageloss compensation on December 7, 2017. Appellant did not appeal from that decision and thus it is not before the 

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

2 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On November 5, 2015 appellant, then a 54-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that she injured her neck, shoulders, and the left side of her 

arm causally related to factors of her federal employment. OWCP accepted the claim for bicipital 

tendinitis of the left shoulder and an aggravation of cervical disc degeneration at the mid-cervical 

region. Appellant worked in a limited-duty capacity beginning June 23, 2016. 

On February 27, 2017 appellant underwent a left shoulder subacromial decompression and 

debridement of the glenohumeral joint. OWCP paid her wage-loss compensation for total 

disability beginning February 27, 2017. It, by letter dated March 30, 2017, informed appellant that 

it was placing her on the periodic rolls, effective February 27, 2017. OWCP instructed her to 

immediately notify it when she returned to work to avoid an overpayment of compensation.

On September 13, 2017 a nurse assigned by OWCP to appellant’s case advised that she 

had returned to full-time limited-duty employment on September 11, 2017.

OWCP, by check dated September 16, 2017, issued appellant net wage-loss compensation 

of $640.78 for the period September 11 to 16, 2017. By check dated October 14, 2017, it paid her 

net wage-loss compensation of $2,990.30 for the period September 17 to October 14, 2017.

Appellant, on September 19, 2017, filed a claim for compensation (Form CA-7) requesting 

intermittent wage-loss compensation from September 9 to 15, 2017. On October 3, 2017 she filed 

a CA-7 form requesting intermittent wage-loss compensation from September 16 to 29, 2017. 

Appellant submitted a time analysis form indicating the hours that she took leave without pay 

(LWOP) because there was no work available.

The employing establishment, in a September 19, 2017 e-mail, notified OWCP that 

appellant had resumed work on September 12, 2017. On October 17, 2017 it advised OWCP of 

the hours that appellant intermittently used LWOP from September 30 to October 13, 2017.

In an October 25, 2017 memorandum, OWCP found that appellant had returned to limitedduty employment on September 11, 2017, but had received wage-loss compensation for total 

disability through October 14, 2017. It indicated that it had paid her $3,661.08 in wage-loss 

compensation for the 34 days from September 11 through October 14, 2017. OWCP determined 

that it should have paid appellant $618.84 in wage-loss compensation for 28.67 hours of LWOP

from September 11 through October 14, 2017. It subtracted $618.84 from $3,661.08 to find a total 

overpayment of compensation in the amount of $3,042.24.

By preliminary determination dated October 25, 2017, OWCP notified appellant that she 

had received a $3,042.24 overpayment of compensation from September 11 through October 14, 

2017 because it had paid her compensation for total disability after she returned to modified 

employment. It further informed her of its preliminary determination that she was at fault in the 

creation of the overpayment. OWCP requested that appellant complete the enclosed overpayment 

recovery questionnaire (OWCP-20) and submit supporting financial documentation. Additionally, 

it notified her that, within 30 days of the date of the preliminary determination, she could request 

a telephone conference, a final decision based on the written evidence, or a prerecoupment hearing. 
3

In a November 8, 2017 response, appellant requested a prerecoupment hearing before an 

OWCP hearing representative. She challenged the finding that she was at fault in the creation of

the overpayment of compensation, noting that she had advised the employing establishment and 

OWCP of her return to work. Appellant indicated that she had used LWOP for seven months 

before OWCP had approved her claim and that the employing establishment had not provided her 

with eight hours of daily work since her return.

During the telephone hearing, held on March 21, 2018, appellant related that she had not 

worked full time since she had returned to work on September 11, 2017. She had submitted CA-7 

forms and believed that the compensation that she had received was for time lost from work. 

Appellant advised that she had notified OWCP of her return to work. She asserted that she was 

unable to pay back the overpayment due to her financial circumstances. The hearing representative 

requested that appellant complete an overpayment recovery questionnaire and submit supporting 

financial documentation.

Thereafter, appellant submitted a completed overpayment recovery questionnaire (Form 

OWCP-20). She noted her monthly income as $2,600.00 and listed monthly expenses. Appellant 

also submitted earnings and leave statements from her work at the employing establishment and a 

copy of a bank statement showing a balance of $7,653.01.

By decision dated July 2, 2018, OWCP’s hearing representative found that appellant had 

received a $3,042.24 overpayment of compensation for the period September 11 through 

October 14, 2017. She determined that appellant was at fault in the creation of the overpayment 

of compensation as she accepted a payment that she knew or should have known was inaccurate 

and thus was ineligible for waiver of recovery of the overpayment. The hearing representative 

directed her to make payment of $100.00 per month to OWCP for recovery of the overpayment of 

compensation.

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.3 

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 

specified instances.4 OWCP’s regulations provide that 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.5 A 

 

3

Id. at § 8102.

4

Id. at § 8116(a).

5 20 C.F.R. § 10.500(a).
4

claimant is not entitled to receive temporary total disability (TTD) benefits and actual earnings for 

the same time period.6 

ANALYSIS -- ISSUE 1

The Board finds that appellant received an overpayment of compensation as she resumed 

work on September 11, 2017 and received TTD compensation for the period September 11 through 

October 14, 2017.7 The Board finds, however, that OWCP failed to properly determine the amount 

of the overpayment of compensation.

OWCP found that appellant received an overpayment of compensation in the amount of 

$3,661.08 for the period September 11 through October 14, 2017. However, it offset this amount 

with wage-loss compensation that was owed for 28.67 hours of LWOP during this period. OWCP 

calculated the amount that it owed appellant for the period September 11 through October 14, 2017 

as $618.84, which it subtracted from $3,661.08 to find an overpayment of $3,042.24.

Although such an offset appears administratively straightforward, the Board has held that 

it may circumvent established legal procedures and protections if the claimant is entitled to 

consideration of waiver.8 Such offsets are not allowed, as they permit an unrestricted recovery of 

the offset portion of the overpayment without regard to the relevant factors set forth in 20 C.F.R. 

§ 10.441(a)9 which denies administrative due process with respect to the amount offset.10

The case will, therefore, be remanded for OWCP to properly calculate the entire amount 

of the overpayment of compensation. After conducting such further development as is deemed 

necessary, OWCP shall issue a de novo decision.

CONCLUSION

The Board finds that appellant received an overpayment of compensation for the period 

September 11 through October 14, 2017, but that the case is not in posture for decision regarding 

the amount of the overpayment.11

 

6 K.E., Docket No. 18-0687 (issued October 25, 2018).

7

Id.; see also L.W., Docket No. 17-0356 (issued June 22, 2018).

8 See S.P., Docket No. 17-1888 (issued July 18, 2018).

9 20 C.F.R. § 10.441(a). This section states that in collecting an overpayment of compensation, OWCP shall 

decrease later payment of compensation by 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.

10 R.H., Docket No. 17-1933 (issued February 15, 2018); R.O., Docket No. 17-0894 (issued January 26, 2018). 

11 As OWCP has not established the amount of overpayment, it is premature for the Board to address the issues of 

fault and recovery. Id.
5

ORDER

IT IS HEREBY ORDERED THAT the July 2, 2018 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: February 1, 2019

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