United States Department of Labor

Employees’ Compensation Appeals Board

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C.L., Appellant

and

DEPARTMENT OF THE ARMY, CORPUS 

CHRISTI ARMY DEPOT, Corpus Christi, TX, 

Employer

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Docket No. 19-0242

Issued: August 5, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 14, 2018 appellant filed a timely appeal from an October 24, 2018 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 a 

$10,289.19 overpayment of compensation for the period April 9 through July 21, 2018; and 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the October 24, 2018 decision, OWCP received additional evidence. The Board 

also notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure provides: 

“The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its 

final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. 

§ 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id.
2

(2) whether OWCP properly found that appellant was at fault in the creation of the overpayment, 

thereby precluding waiver of recovery of the overpayment.

FACTUAL HISTORY

On May 23, 2017 appellant, then a 63-year-old composite fabricator, filed a traumatic 

injury claim (Form CA-1) alleging that, while in the performance of duty, she sustained injuries 

due to tripping on an ergonomic mat that was protruding approximately 12 inches “from the ending 

side of a tool box.” By decision dated June 8, 2017, OWCP accepted the claim for left knee sprain, 

right knee sprain, sprain of muscle, fascia, and tendon of left hip, and sprain of right shoulder joint.

OWCP referred appellant to Dr. Walter Del Gallo, a Board-certified orthopedic surgeon, 

for a second opinion evaluation to determine the nature and extent of her accepted employmentrelated conditions. In a November 15, 2017 report, Dr. Del Gallo reviewed a statement of accepted 

facts, history of the injury, and the medical evidence of record. He conducted a physical 

examination and found that appellant had reached maximum medical improvement on 

October 31, 2017. Dr. Del Gallo opined that her bilateral knee and left hip conditions had 

resolved. He found that while appellant persisted with right shoulder pain, weakness, and limited 

mobility due to her right shoulder rotator cuff partial thickness tear and strain, she declined surgical 

intervention. Dr. Del Gallo concluded that she had reached a permanent and stationary status after 

completion of physical therapy and provided the following work restrictions: pushing and pulling 

no more than 20 pounds for 2 hours per day; lifting no more than 10 hours for 2 hours per day; and 

no reaching, reaching above the shoulder, or climbing with the right upper extremity. 

In a letter dated August 15, 2017 (CA-1049), OWCP advised that appellant had been 

placed on the periodic rolls and outlined her entitlement to compensation benefits and her

responsibility to return to work in connection with the accepted injury.3In an attached EN1049 

OWCP provided: 

“To minimize the possibility of an overpayment of compensation, NOTIFY THIS 

OFFICE IMMEDIATELY WHEN YOU GO BACK TO WORK. If you receive 

your compensation payments via paper check, the payment shows the period for 

which payment is made. If you have worked for any portion of this period, return 

the payment to this office, even if you have already advised the OWCP that you are 

working. For payments sent by electronic funds transfer (EFT), a notification of 

the date and amount of payment appears on the statement from your financial 

institution. You are expected to monitor your EFT deposits carefully, at least every 

2 weeks. If you have worked for any portion of the period for which a deposit was 

made, advise OWCP immediately so that the overpayment can be collected.”

(Emphasis in the original.)

 

3

In a letter dated April 22, 2014, OWCP informed appellant that it made a preliminary determination that she 

received an overpayment of compensation in the amount of $731.70 because health benefits were not deducted for the 

period October 20, 2013 to April 5, 2014. By decision dated April 17, 2015, it finalized its preliminary determination 

finding that she was at fault in the creation of an overpayment in the amount of $731.70 and requested payment in full 

within 30 days. 
3

In a duty status report (Form CA-17) dated April 5, 2018, Dr. Del Gallo released appellant 

to full-time, regular-duty work without restrictions effective April 9, 2018. 

In a report of work status (Form CA-3) dated April 9, 2018, the employing establishment 

advised OWCP that appellant had returned to work that day. 

In a compensation termination sheet dated July 19, 2018, OWCP indicated that appellant 

had returned to work on April 9, 2018. It noted that for the period April 9 through July 21, 2018 

she was overpaid compensation in the amount of $10,289.19. OWCP calculated this amount by 

taking the gross compensation paid from April 9 to 28, 2018, $2,433.88, and subtracting $368.30

for health benefits insurance (HBI), $12.21 for basic life insurance (BLI), $19.29 for optional life 

insurance (OLI), and $67.12 for miscellaneous which yielded $1,966.92. For the period April 29 

to May 26, 2018, appellant’s gross compensation was $3,407.43, and subtracting $515.62 for HBI, 

$17.10 for BLI, $27.00 for OLI, and $94.02 for miscellaneous yielded $2,753.69. For the period 

May 27 to June 23, 2018, her gross compensation was $3,407.43, and subtracting $515.62 for HBI, 

$0.00 for BLI, $27.00 for OLI, and $94.02 for miscellaneous yielded $2,770.79. For the period 

June 24 to July 21, 2018, appellant’s gross compensation was $3,407.43, and subtracting $515.62 

for HBI, $0.00 for BLI, $0.00 for OLI, and $94.02 for miscellaneous yielded $2,797.79. OWCP 

calculated the total amount of the overpayment to be $10,289.19. 

In a September 20, 2018 letter, OWCP informed appellant that it made a preliminary 

determination that she received an overpayment of compensation in the amount of $10,289.19 for 

the period April 9 through July 21, 2018, because she received compensation benefits after she 

returned to work on April 9, 2018. It found that she was at fault in creating the overpayment 

because she accepted payment that she knew or reasonably should have known to be incorrect. 

OWCP informed appellant that she had the right to submit evidence or argument if she disagreed 

with its finding. It also informed her that she had a right to a prerecoupment hearing before an 

OWCP hearing representative. OWCP instructed appellant to complete an enclosed overpayment 

recovery questionnaire (Form OWCP-20) and submit supporting documentation. No additional 

information was received. 

By decision dated October 24, 2018, OWCP finalized the preliminary determination of a 

$10,289.19 overpayment of compensation for the period April 9 through July 21, 2018. It 

determined that appellant was at fault in the creation of the overpayment and therefore she was not 

entitled to waiver of recovery of the overpayment. OWCP required recovery in full within 30 

days. 

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 duty.4

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

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

 

4 5 U.S.C. § 8102(a).
4

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.5 Section 10.500 of OWCP’s regulations provides 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.6 

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

for the same time period.7 OWCP procedures provide that an overpayment of compensation is 

created when a claimant returns to work, but continues to receive wage-loss compensation for 

TTD.8

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $10,289.19 for the period April 9 through July 21, 2018. 

The record establishes that appellant returned to work full time at the employing 

establishment on April 9, 2018. She received wage-loss compensation for total disability through 

July 21, 2018. As noted above, appellant is not entitled to receive compensation for total disability 

after she has returned to work.9 Thus, an overpayment of compensation was created.

OWCP calculated appellant’s net compensation paid for the period April 9 through July 21, 

2018 at $10,289.19. However, appellant was not entitled to receive any compensation for the 

period April 9 through July 21, 2018, as she returned to full-time regular-duty work without 

restrictions on April 9, 2018. 

Appellant has not contested the fact or amount of the overpayment. Thus, the Board finds 

that she received an overpayment of compensation in the amount of $10,289.19 for the period 

April 9 through July 21, 2018.

LEGAL PRECEDENT -- ISSUE 2

Section 8129(b) of FECA provides as follows that 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 this subchapter or would be 

 

5

Id. at § 8116(a).

6 20 C.F.R. § 10.500(a).

7 See K.E., Docket No. 18-0687 (issued October 25, 2018); M.S., Docket No. 16-0289 (issued April 21, 2016); L.S.,

59 ECAB 350, 352-53 (2008).

8 K.E., id.; 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).

9 See supra notes 5-7.
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against equity and good conscience.10 No waiver of an overpayment is possible if the claimant is 

at fault in creating the overpayment.11

On the issue of fault, 20 C.F.R. § 10.433(a) provides that an individual is with fault in the 

creation of an overpayment who: (1) made an incorrect statement as to a material fact which the 

individual knew or should have known to be incorrect; or (2) failed to furnish information which 

the individual knew or should have known to be material; or (3) with respect to the overpaid 

individual only, accepted a payment which the individual knew or should have been expected to 

know was incorrect.12

With respect to whether an individual is without fault, section 10.433(b) of OWCP 

regulations provide that whether or not OWCP determines that an individual was at fault with 

respect to the creation of an overpayment depends on 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.13

Section 10.430(a) of OWCP regulations advise that OWCP includes on each periodic check 

a clear indication of the period for which payment is being made. A form is sent to the recipient 

with each supplemental check which states the period for which payment is being made.14 Section 

10.430(b) notes that, by these means, OWCP puts the recipient on notice that a payment was made 

and the amount of the payment.15

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly determined that appellant was at fault in the creation 

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

OWCP found that appellant was at fault in the creation of the overpayment because she 

accepted a payment which she knew or should have known to be incorrect, applying the third 

criterion listed above.16 To establish that she was at fault, it must establish that at the time she

accepted the compensation check in question she knew or should have known that the payment 

was incorrect.

When a disabled employee is placed on the periodic compensation rolls, OWCP routinely 

advises the employee of this fact and issues a CA-1049 identifying the weekly pay rate, the 

 

10 5 U.S.C. § 8129(b).

11 See Gregg B. Manston, 45 ECAB 344 (1994).

12 20 C.F.R. § 10.433(a).

13 Id. at § 10.433(b).

14 Id. at § 10.430(a).

15 Id. at § 10.430(b).

16 Id. at § 10.433(a)(3).
6

compensation rate, the gross payment, any applicable deductions, and the net amount to be 

disbursed.17 The CA-1049 is generally accompanied by an EN1049, which explains the 

employee’s rights and responsibilities with respect to the receipt of compensation.18 This latter 

document provides pertinent information regarding returning to work and how to avoid an 

overpayment of benefits. It also includes a certification that the benefits recipient has read and 

understands the terms and conditions under which he or she may receive compensation. OWCP 

provided appellant this same information by letter dated August 15, 2017.

Under these factual circumstances, appellant knew or should have known that she could 

not receive wage-loss compensation during any period that she worked or continued to receive 

wages from the employing establishment.19

The Board therefore finds that appellant knew or should have known at the time she 

returned to work on April 9, 2018 and began to receive wages from the employing establishment

that she was not entitled to concurrently receive wage-loss compensation for the same period. 

Under section 10.433(a) of OWCP regulations,20 appellant is at fault in the creation of the 

overpayment and is not entitled to waiver of recovery of the overpayment in the amount of 

$10,289.19.

CONCLUSION

The Board finds that OWCP properly determined that appellant received a $10,289.19 

overpayment of compensation for the period April 9 through July 21, 2018. The Board further 

finds that OWCP properly found that she was at fault in the creation of the overpayment, thereby 

precluding waiver of recovery of the overpayment.

 

17 Supra note 8 at Part 2 -- Claims, Periodic Review of Disability Cases, Chapter 2.812.4 (March 2010).

18 Id.

19 See G.S., Docket No. 11-0459 (issued October 27, 2011); Neill D. Dewed, 57 ECAB 451 (2006).

20 See supra note 14.
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ORDER

IT IS HEREBY ORDERED THAT the October 24, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 5, 2019

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board