United States Department of Labor

Employees’ Compensation Appeals Board

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S.C., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Pittsburgh, PA, Employer

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Docket No. 19-0576

Issued: September 19, 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 January 17, 2019 appellant filed a timely appeal from a December 17, 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 an 

overpayment of compensation in the amount of $5,325.47 for the period from September 19 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the December 17, 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 

additional evidence for the first time on appeal. Id.
2

through October 13, 2018; and (2) whether it properly found appellant at fault in the creation of 

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

FACTUAL HISTORY

On May 2, 2018 appellant, then a 32-year-old physician assistant, filed a traumatic injury 

claim (Form CA-1) alleging that on March 19, 2018 she was sexually assaulted while in the 

performance of duty. She stopped work on April 19, 2018. OWCP accepted the claim for other 

specified anxiety disorders, panic disorder without agoraphobia, and unspecified insomnia. It paid 

appellant wage-loss compensation for total disability on the supplemental rolls retroactive to 

March 20, 2018. 

On August 23, 2018 OWCP notified appellant that, in order to avoid an overpayment of 

compensation, she must immediately notify their office of her return to work or new employment. 

It also advised her that she was required to return any wage-loss compensation check(s) to OWCP 

which compensated her during the period which she worked. OWCP explained that, as appellant 

received her compensation payments by Electronic Funds Transfer (EFT), she was expected to 

monitor her EFT deposits carefully, at least every two weeks. If she worked for a portion of the 

period for which a deposit was made, she was instructed to advise OWCP immediately so that the 

overpayment could be collected. 

Appellant returned to work in a full-duty capacity on September 19, 2018. She stopped 

work on September 26, 2018.

In a September 30, 2018 progress report, OWCP’s field nurse related that appellant had 

been off work since September 26, 2018 due to panic attacks. 

Appellant received compensation for total disability through October 13, 2018. For the 

period September 16 through October 13, 2018, appellant was paid $5,964.53. 

In a development letter dated November 7, 2018, OWCP indicated that it had received a 

“notice of recurrence of disability (Form CA-2a)” alleging a worsening of appellant’s accepted 

conditions as of September 26, 2018.3 Appellant was advised regarding the medical evidence 

necessary to establish her recurrence claim and was afforded 30 days to submit the necessary 

evidence.4

In a memorandum regarding the overpayment, OWCP indicated that appellant received a 

total of $5,325.47 in wage-loss compensation benefits for the period September 19 through 

October 13, 2018. It noted that she was paid a daily rate of $203.02 (75 percent compensation rate 

at $1,999.51 weekly) with an effective pay rate date of March 19, 2018). OWCP found that the 

28-day cycle of $5,964.53 (net) divided by 28 days ($213.02) multiplied by 25 days for the stated 

period equaled $5,325.47. 

 

3 This Form CA-2a is not of record. 

4 No decision had been issued on the claimed recurrence. 
3

On November 16, 2018 OWCP notified appellant of its preliminary determination that she 

received an overpayment of compensation in the amount of $5,325.27 for the period September 19 

through October 13, 2018 because she received compensation for total disability after she returned 

to work on September 19, 2018. It explained that for the 25-calendar days, during the period 

September 19 through October 13, 2018, she was overpaid a total of $5,325.47. A copy of 

OWCP’s calculations were provided. OWCP further found that she was not at fault in the creation 

of the overpayment because she was not aware nor should she have reasonably been aware that 

the compensation would be paid in error. It explained that less than 30 days had elapsed since the 

EFT deposit was made, which did not allow her ample time to receive and review a statement from 

her financial institution which showed the details of the improper payment. It further informed 

appellant that she had 30 days to request a telephone conference, a final decision based on the 

written evidence, or a prerecoupment hearing on the issues of fault and a possible waiver.

Appellant did not respond to OWCP’s preliminary determination or provide financial 

information.

By decision dated December 17, 2018, OWCP finalized its preliminary determination that 

appellant received an overpayment of compensation in the amount of $5,325.47 for the period 

September 19 through “October 31, 2018” based on her receipt of compensation for disability after 

her return to work.5 However, it revised its finding that she was at fault in the creation of the 

overpayment as more than 30 days had elapsed since the EFT deposit was made, which allowed 

her ample time to receive and review a statement from her financial institution which showed the 

details of the improper payment. OWCP directed recovery of the full amount of the overpayment

within 30 days.

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.6

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 

circumstances.7 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.8

 

5 The period of the overpayment was properly noted in the preliminary notice to be September 19 through 

October 13, 2018.

6 Supra note 1 at § 8102.

7

Id. at § 8116(a).

8 20 C.F.R. § 10.500(a).
4

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

for the same time period.9 OWCP procedures provide that an overpayment of compensation is 

created when a claimant returns to work, but continues to receive wage-loss compensation.10

ANALYSIS -- ISSUE 1

The Board finds that this case is not in posture for decision.

The evidence of record establishes that appellant returned to full-time work on 

September 19, 2018, but continued to receive full wage-loss compensation through 

October 13, 2018. As noted above, a claimant is not entitled to receive compensation for total 

disability during a period in which he or she had actual earnings.11 Therefore, an overpayment of 

compensation was created in this case.12

With regard to the amount of overpayment, OWCP found an overpayment of compensation 

in the amount of $5,325.27 for the period September 19 through October 13, 2018. 

The Board finds, however, with regard to the amount of the overpayment, that appellant 

again stopped work on September 26, 2018. It appears that OWCP began developing appellant’s 

work stoppage as a recurrence of disability due to a material change/worsening of her accepted 

employment-related conditions.

13

 The record does not reflect that OWCP has developed the issue 

of appellant’s entitlement to intermittent wage-loss compensation after her return to work on 

September 19, 2018 by requesting information from the employing establishment regarding 

appellant’s lost time from work prior to the calculation of the overpayment.14 OWCP’s 

November 16, 2018 preliminary notice and December 17, 2018 final overpayment decision did 

not address appellant’s actual wage-loss compensation during the period in question. Due to this 

omission, the Board is unable to adequately review this aspect of the case to determine the amount 

of overpayment compensation, if any. A claimant is entitled to an overpayment decision that 

clearly explains how the amount was calculated.15 The Board finds that the overpayment decision 

 

9 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).

10 See 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 6.200.1(a) 

(September 2018).

11 See supra notes 7 and 8.

12 See supra note 8.

13 The record is devoid of which forms, if any, appellant filed.

14 S.H., Docket No. 19-0509 (issued August 23, 2019). 

15 C.G., Docket No. 18-1655 (issued June 14, 2019). 
5

in this case does not provide such an explanation. Therefore, the amount of overpayment has not 

been established.16

On remand OWCP shall determine whether appellant was entitled to additional wage-loss 

compensation during the period September 26 through October 13, 2018. It shall then determine 

the exact amount of overpayment in compensation which occurred during the relevant period. 

OWCP should thereafter issue a new preliminary overpayment determination, with an appropriate 

overpayment action request form, an overpayment recovery questionnaire, and instructions for her 

to provide supporting financial information. After it has further developed the case record, a 

de novo decision shall be issued.17

CONCLUSION

The Board finds that OWCP properly determined the fact of overpayment. The Board 

further finds, however, that the amount of overpayment is not in posture for a decision.18

 

16 Supra note 14. 

17 See B.T., Docket No. 13-1619 (issued February 24, 2014). 

18 In light of the Board’s disposition as to Issue 1, Issue 2 is rendered moot.
6

ORDER

IT IS HEREBY ORDERED THAT the December 17, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded 

for further action consistent with this decision of the Board.

Issued: September 19, 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