United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.H., Appellant

and

U.S. POSTAL SERVICE, CENTRAL SQUARE 

POST OFFICE, Cambridge, MA, Employer

__________________________________________

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Docket No. 18-1539

Issued: August 2, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On July 17, 2018 appellant filed a timely appeal from a January 18, 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.3

 

1 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from January 18, 2018, the date of OWCP’s last decision was 

July 17, 2018. Since using July 18, 2018, the date the appeal was received by the Clerk of the Appellate Boards,

would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. 

Postal Service postmark is July 17, 2018, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

2 5 U.S.C. § 8101 et seq.

3 The Board notes that, following the January 18, 2018 decision, OWCP received additional evidence. 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 

evidence for the first time on appeal. Id.
2

ISSUES

The issues are: (1) whether OWCP properly determined that appellant received an 

overpayment of compensation in the amount of $4,662.29 for the period November 9, 2009 to 

January 16, 2010; (2) whether OWCP properly determined that appellant was at fault in the 

creation of the overpayment, thereby precluding waiver of recovery of the overpayment; and 

(3) whether OWCP properly directed recovery of the overpayment by deducting $100.00 every 28 

days from appellant’s continuing compensation.

FACTUAL HISTORY

This case has previously been before the Board.

4

 The facts and circumstances of the case 

as set forth in the prior Board decisions are incorporated herein by reference. The relevant facts 

are as follows.

On September 1, 1993 appellant, then a 29-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging progressive deterioration of both her knee joints while in the 

performance of her federal employment duties.5 On October 20, 1993 OWCP accepted the claim 

for aggravation of bilateral knee degenerative joint disease and paid her wage-loss compensation 

and medical benefits on the periodic compensation rolls commencing December 17, 1993.

6

OWCP subsequently placed appellant on the daily rolls, effective May 28, 1997, and 

subsequently on the periodic compensation rolls for partial disability compensation. In a letter 

dated August 29, 1997, it notified her of her continuing compensation payments and her 

responsibility to return to work if she no longer was totally disabled. To minimize the possibility 

of an overpayment of compensation, appellant was instructed to notify OWCP immediately if and 

when she returned to work. OWCP noted that her first payment would be for the period May 28 

to August 16, 1997 in the net amount of $1,414.61. 

Appellant was paid total disability compensation on the periodic compensation rolls, 

effective June 10, 2007, and subsequently on the supplemental rolls.

In a disability/return-to-work notice dated January 21, 2010, the employing establishment 

informed OWCP that appellant had returned to part-time, modified-duty work with restrictions on 

November 9, 2009. 

By letter dated January 25, 2010, OWCP notified the employing establishment that 

although appellant had returned to part-time, modified-duty work on November 9, 2009, she 

received wage-loss compensation for total disability through January 16, 2010. It notified the 

 

4 Docket No. 02-2373 (issued June 27, 2003); Docket No. 06-2184 (issued April 10, 2007).

5 Appellant has a prior traumatic injury claim in which OWCP accepted that she sustained a contusion of the right 

knee and fracture of the distal end of the right femur on April 23, 1992 due to a motor vehicle accident while in the 

performance of duty. OWCP assigned that claim File No. xxxxxx133. It administratively combined File No. 

xxxxx133 and File No. xxxxxx292, with File No. xxxxxx292 serving as the master file. 

6 Starting in May 1995 appellant performed part-time, limited-duty work at the employing establishment, for 20 

hours a week, and continued to receive wage-loss compensation on the supplemental rolls. 
3

employing establishment that, in order to calculate the overpayment amount, it needed leave 

analysis records for the period November 9, 2009 to January 16, 2010 and premium deductions 

for health benefits and life insurance. 

On January 29, 2010 the employing establishment again informed OWCP by a documented 

telephone call that on November 9, 2009 appellant had returned to part-time, modified-duty work,

six hours a day, five days a week. On June 22, 2010 appellant contacted OWCP and reported that 

she had returned to work as a router in November 2009 and she had notified OWCP of her return 

to work. She acknowledged that she had received three compensation payments before her wageloss compensation was adjusted to reflect her return to work.

By letter dated June 25, 2010, OWCP requested that the employing establishment provide 

information regarding appellant’s date-of-injury pay rate and current actual earnings.

In a telephone call on July 9, 2010, the employing establishment informed OWCP that

appellant’s actual earnings as of November 9, 2009 were $1,015.36 per week and that the current 

annual pay rate for her date-of-injury, full-time job was $50,723.00 per year.

In a Memorandum to the Director from the Claims Examiner dated July 13, 2010, OWCP 

identified and calculated an overpayment of compensation in the amount of $1,552.64 for the 

period November 9, 2009 through January 16, 2010 as appellant continued to receive total 

disability compensation after she had returned to part-time work on November 9, 2009. 

Worksheets prepared on July 13, 2010 and computer printouts documented that for the period 

November 9, 2009 through January 16, 2010 she received temporary total disability compensation 

in the net amount of $5,989.03. These records also documented that appellant was only entitled 

to receive the net amount of $1,282.50 for partial disability and the net amount of $3,153.89 for 

total disability, totaling $4,436.39. This yielded an overpayment of compensation in the amount 

of $1,552.64 for the period November 9, 2009 through January 16, 2010.

On July 22, 2010 OWCP issued an informal loss of wage-earning capacity determination

(LWEC), adjusting appellant’s compensation based on her actual earnings in a part-time, limitedduty position working 30 hours a week. It noted that she had been due wage-loss compensation 

based on her actual earnings from November 9, 2009 through July 3, 2010, but that she was paid

compensation for total disability through January 16, 2010 even though she had already returned 

to work. OWCP advised that it would compute whether any overpayment existed for this period 

and, if so, then it would inform appellant by separate letter.

Also, by telephone on July 22, 2010, OWCP requested that appellant review its informal 

LWEC determination letter and advise whether any errors had been made in its computation. It 

informed her that it had estimated the amount of an overpayment based on the computed LWEC, 

but that it wanted her to review its letter first and then it would finalize the overpayment and inform 

her about its decision. No response was received from appellant.

On August 14, 2017 the employing establishment again informed OWCP that it noticed 

that appellant was still paid on the periodic compensation rolls after she had returned to work on 

November 9, 2009. It related that it could not see any repayments in the system. The employing 

establishment requested that OWCP review appellant’s case record and notify her if an 

overpayment had been created. On August 14, 2017 OWCP responded that the worksheets had 
4

been completed, but for some reason it never reported the overpayment. It advised the employing 

establishment that it would move forward with the overpayment. 

In a letter dated September 13, 2017, OWCP advised appellant of its preliminary 

determination that she had received a $4,662.29 overpayment of compensation for the period 

November 9, 2009 to January 16, 2010 because she had been paid temporary total disability 

compensation after her return to part-time, modified-duty work on November 9, 2009. It also 

made a preliminary finding that she was at fault in the creation of the overpayment because she 

was aware or should have been aware that it had incorrectly paid compensation. OWCP advised 

appellant that she could submit evidence challenging the fact, amount, or finding of fault and 

request waiver of recovery of the overpayment. Additionally, it informed her that within 30 days 

she could request a telephone conference, a final decision based on the written evidence, or a 

prerecoupment hearing. OWCP requested that appellant complete the enclosed overpayment 

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

A worksheet prepared on August 14, 2017 showed that from November 9, 2009 to 

January 16, 2010 appellant received temporary total disability compensation in the net amount of 

$5,944.79, when she was only entitled to the net amount of $1,282.50 for partial disability for this 

period. This yielded an overpayment of compensation in the amount of $4,662.29 for the period 

November 9, 2009 to January 16, 2010. 

On October 17, 2017 appellant requested a telephone conference regarding the amount of 

the overpayment and the finding of fault. She contended that any overpayment that occurred was 

recouped by OWCP when it had suspended her compensation for 10 hours of work per week,

commencing January 16, 2010 and had not reinstated her compensation until her payment for wage

loss for the period July 4 to 31, 2010. Appellant further contended that on November 11, 2009 she 

informed OWCP that she had returned to part-time work. She related that she did not realize there 

was a problem until she received a compensation check on December 19, 2009 and again on 

January 16, 2010. Shortly after receiving each payment appellant informed OWCP about the 

compensation checks and was told that nothing could be done without the submission of an official 

disability/return-to-work notice by the employing establishment. She alleged that she was also 

instructed to cash the checks and that the situation would be straightened out after OWCP received 

the official paperwork from the employing establishment. Appellant submitted an overpayment

recovery questionnaire (Form OWCP-20) and supporting financial documentation. 

By decision dated January 18, 2018, OWCP finalized its determination that appellant 

received an overpayment of compensation in the amount of $4,662.29 for the period November 9, 

2009 to January 16, 2010 and that she was at fault in the creation of the overpayment as she had 

accepted compensation payments she knew or reasonably should have known were incorrect.

7

 It 

directed recovery of the overpayment by deducting $100.00 every 28 days from her continuing 

compensation payments. 

 

7 OWCP made several unsuccessful attempts to schedule the requested telephone conference. As a result, it made 

a determination based on the evidence of record. 
5

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.8 Section 8129(a) of FECA provides, in pertinent part, that when an 

overpayment has been made to an individual under this subchapter 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 an individual is entitled.9

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 

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.10 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.11 A 

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

same time period.12 OWCP procedures provide that an overpayment of compensation is created 

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

total disability.13

OWCP’s procedures provide that, once an overpayment is identified, it is responsible for 

determining whether the claimant was with fault or without fault, issuing a preliminary finding, 

and unless a hearing is requested, OWCP is responsible for issuing a final decision.14 These 

procedures note that, if the claimant is determined to be at fault, a Form CA-2201 (preliminary 

finding notice) must be released (along with a Form OWCP-20) within 30 days of the date the 

overpayment is identified. Both the reason that the overpayment occurred and the reason for the 

finding of fault must be clearly stated. A Form CA-2201 informs the claimant of the right to 

submit evidence and the right to a prerecoupment hearing on the issue of: (a) fact and amount of 

overpayment; (b) fault; and (c) waiver. Along with the Form CA-2201, OWCP should provide a 

clearly written statement explaining how the overpayment was created.

 

8 5 U.S.C. § 8102(a).

9

Id. at § 8129(a).

10 Id. at § 8116(a).

11 20 C.F.R. § 10.500(a).

12 See M.S., Docket No. 16-0289 (issued April 21, 2016); L.S., 59 ECAB 350, 352-53 (2008).

13 J.L., Docket No. 18-1266 (issued February 15, 2019); 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).

14 C.G., Docket No. 15-0891 (issued August 9, 2016); Federal (FECA) Procedure Manual, id. at Chapter 

6.200.4(a)(1).
6

ANALYSIS -- ISSUE 1

The Board finds that OWCP improperly determined that appellant received an 

overpayment of compensation in the amount of $4,662.29 for the period from November 9, 2009 

to January 16, 2010.

As noted, OWCP’s procedures provide that an overpayment of compensation is created 

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

total disability. On January 25, 2010 it identified an overpayment of compensation as appellant

had returned to part-time, modified-duty work on November 9, 2009, but continued to receive 

temporary total disability compensation for the period November 9, 2009 through 

January 16, 2010. It was not until September 13, 2017, however, that OWCP issued a preliminary 

determination, finding an overpayment in the amount of $4,662.29 had been created for the period

November 9, 2009 to January 16, 2010 because appellant continued to receive compensation for 

total disability following her return to part-time, modified-duty work. By decision dated 

January 18, 2018, OWCP finalized the preliminary overpayment determination finding that 

appellant was at fault in the receipt of an overpayment of compensation in the amount of $4,662.29 

and, thus, she was not entitled to waiver of recovery of the overpayment. It required recovery of 

the overpayment by deducting $100.00 every 28 days from her continuing compensation. 

The Board finds that OWCP failed to follow its procedures in issuing the January 18, 2018

overpayment decision. As noted, OWCP procedures provide that a Form CA-2201 (preliminary 

finding notice) must be released along with an OWCP-20 within 30 days of the date the 

overpayment is identified.15 In this case, OWCP first identified the overpayment of compensation 

on January 25, 2010, but it did not, however, issue a preliminary notice regarding the overpayment 

until September 13, 2017, more than seven years later. 

Timely issuance of the preliminary overpayment notice is particularly important given the 

disparity between OWCP’s initial finding of a $1,552.64 overpayment for the period November 9, 

2009 through January 16, 2010 and its subsequent finding of a greater overpayment in the amount 

of $4,662.29 overpayment for the same period. Moreover, it is particularly noteworthy that OWCP 

acknowledged in its own statements to the employing establishment on August 14, 2017 that it 

had previously computed the overpayment, but never reported it. 

The Board thus finds that OWCP failed to follow its established procedures in determining 

that appellant received an overpayment of compensation in the amount of $4,662.29 during the 

period November 9, 2009 through January 16, 2010.16

 

15 Id.

16 Based on the Board’s disposition of whether an overpayment of compensation was created, the issues of fault 

and recovery are moot. See C.C., Docket No. 16-1190 (issued May 12, 2017).
7

CONCLUSION

The Board finds that OWCP failed to follow its established procedures in determining that 

appellant received an overpayment of compensation in the amount of $4,662.29 for the period 

November 9, 2009 to January 16, 2010.

ORDER

IT IS HEREBY ORDERED THAT the January 18, 2018 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: August 2, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board