United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.J., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Bedford Park, IL, Employer

__________________________________________

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Docket No. 17-1974

Issued: March 23, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 22, 2017 appellant, through counsel, filed a timely appeal from a May 24, 

2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). 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 case.

ISSUES

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

amount of $2,248.55 for the period February 9 through March 4, 2017 because she continued to 

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq. 
2

receive monetary compensation after the expiration of a schedule award; and (2) whether OWCP 

properly found appellant at fault in the creation of the overpayment, thereby precluding waiver of 

the recovery of the overpayment.

FACTUAL HISTORY

On October 8, 2011 appellant, then a 59-year-old mail handler, filed an occupational 

disease claim (Form CA-2) alleging that she developed bilateral foot conditions due to the 

performance of her federal employment duties over 23 years. OWCP accepted bilateral lower 

extremity conditions of metatarsophalangeal sprain of foot, plantar fibromatosis, Achilles 

tendinitis, and tenosynovitis of foot and ankle. Appellant stopped work on January 24, 2012 and 

did not return. She received continuous wage-loss compensation beginning April 30, 2012 on the 

supplemental roll, and was placed on the periodic compensation rolls in November 2014.3

On June 14, 2016 appellant filed a schedule award claim (Form CA-7). On an OWCP 

EN1032 form, signed by her on November 7, 2016, she reported that she was not receiving benefits 

from the Office of Personnel Management (OPM), but was receiving monthly benefits from the

Social Security Administration (SSA). At that time she remained on the periodic compensation 

rolls. 

Following appropriate medical development, by decision dated December 21, 2016,

OWCP granted appellant a schedule award for two percent permanent impairment of the right 

lower extremity and one percent permanent impairment of the left lower extremity. The award 

was for 8.64 weeks and was paid from December 11, 2016 through February 9, 2017.

Appellant telephoned OWCP on April 3, 2017 and inquired if her periodic rolls

compensation would resume. A claims examiner informed appellant that her case would be 

reviewed regarding her return to the periodic rolls, and that she would be contacted once a 

determination was made. 

On April 19, 2017 OWCP issued a preliminary determination that appellant received an 

overpayment of compensation in the amount of $2,248.55 for the period February 9 through 

March 4, 2017 because she continued to receive schedule award compensation after its expiration 

on February 9, 2017. Appellant was found to be at fault in the creation of the overpayment. 

OWCP explained that a payment was released through March 4, 2017, and she was only entitled 

to compensation for a partial day on February 9, 2017. It advised appellant of the steps to be taken 

if she disagreed with the preliminary determination and provided her an overpayment action 

request form and overpayment recovery questionnaire (Form OWCP-20). An overpayment 

worksheet of record explained the calculation of the overpayment.

On May 5, 2017 appellant requested a review of the written record by an OWCP hearing 

representative. She indicated on the overpayment action request that a claims examiner informed 

her that her periodic rolls payment would restart two months after expiration of the schedule award. 

 

3 By decision dated March 19, 2013, OWCP denied appellant’s claim for wage-loss compensation for October 24 

and 25, 2011. The record indicates that appellant has three additional FECA claims accepted for back and upper 

extremity conditions. These claims have not been combined.
3

On the overpayment recovery questionnaire appellant listed income of $2,035.00 in monthly SSA 

benefits, and expenses totaling $3,153.47 with savings of $2,300.00. 

On May 24, 2017 OWCP finalized the overpayment of compensation. It determined that

the preliminary determination that appellant was at fault was correct and, therefore, she was not 

entitled to waiver of recovery of the overpayment. OWCP requested repayment in full. 

LEGAL PRECEDENT -- ISSUE 1

The schedule award provisions of FECA4and its implementing regulations5set forth the 

number of weeks of compensation payable to employees sustaining permanent impairment from 

loss or loss of use, of scheduled members or functions of the body. Section 10.404 of OWCP 

regulations states that compensation is provided for specified periods of time for the permanent 

loss or loss of use of certain members.6

OWCP procedures provide that an overpayment is created when a schedule award expires,

but compensation continues to be paid.7

The procedures also provide that, if temporary total disability is interrupted to pay a 

schedule award, such payments must be resumed at the end of the schedule award if the claimant 

has not been reemployed or rated for a loss of wage-earning capacity at the time the award ends. 

It further notes that it may be necessary to obtain an election if the claimant is also receiving an 

annuity from OPM.8

ANALYSIS -- ISSUE 1

The Board finds that this case is not in posture for decision regarding whether an 

overpayment of compensation was created. 

The record supports that appellant was receiving compensation on the periodic rolls at the 

time that her schedule award compensation began on December 11, 2016. As noted, OWCP 

procedures provide that, if temporary total disability is interrupted to pay a schedule award, such 

payments must be resumed at the end of the schedule award if the claimant has not been 

reemployed or rated for a loss of wage-earning capacity at the time the award ends.9 There is no 

evidence of record that OWCP followed these procedures in this case, even though appellant 

telephoned OWCP inquiring on the matter. The Board thus finds that fact of overpayment is not 

 

4 5 U.S.C. § 8107

5 20 C.F.R. § 10.404. 

6

Id. Effective May 1, 2009, OWCP began using the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (6th ed. 2009). See J.L., Docket No. 14-0898 (issued March 26, 2015).

7 Federal (FECA) Procedure Manual, Part 6 -- Initial Overpayment Actions, Chapter 6.200.2(c) (May 2004).

8

Id. at Part 2 -- Claims, Chapter 2.808.7(5) (February 2013). 

9 Supra note 6.
4

in posture for decision, as OWCP has not considered whether to reinstate appellant’s temporary 

total disability after the expiration of her schedule award. 

The Board will set aside the May 24, 2017 decision and remand the case to OWCP to 

follow its procedures regarding appellant’s claim for resumption of periodic rolls compensation 

due to disability.10 Following this and such further development as deemed necessary, OWCP 

should render a de novo overpayment decision.

Based on the Board’s finding regarding Issue 1, Issue 2 is rendered moot.

CONCLUSION

The Board finds that this case is not in posture for decision regarding whether an 

overpayment of compensation was created.

ORDER

IT IS HEREBY ORDERED THAT the May 24, 2017 decision of the Office of Workers’

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

with this opinion of the Board.

Issued: March 23, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

10 Goldie Washington, 31 ECAB 239 (1979).