United States Department of Labor

Employees’ Compensation Appeals Board

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N.L., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Syracuse, NY, Employer

__________________________________________

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Docket No. 19-0333

Issued: September 3, 2019

Appearances: Case Submitted on the Record

Kimberly A. Slimbaugh, Esq., for the appellant1

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 November 29, 2018 appellant, through counsel, filed a timely appeal from an 

August 27, 2018 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 this case.

 

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

ISSUES

The issues are: (1) whether appellant received an overpayment of wage-loss compensation

in the amount of $13,968.46 for the period November 9, 2015 through July 23, 2016; and 

(2) whether OWCP properly denied waiver of recovery of the overpayment.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior order are incorporated herein by reference. The relevant facts are as follows.

On November 3, 2004 appellant, then a 38-year-old mail processing clerk, filed a notice of 

recurrence (Form CA-2a) on July 13, 2004 claiming disability causally related to a January 11, 

2001 employment injury.4 OWCP converted the recurrence claim to a claim for a new traumatic 

injury, assigned OWCP File No. xxxxxx288, and accepted it for aggravation of dislocation of the 

lumbar vertebra. It paid appellant wage-loss compensation beginning July 2004.

By decision dated May 9, 2007, OWCP reduced appellant’s wage-loss compensation based 

on its finding that her actual earnings working 20 hours per week as a modified manual clerk,

effective January 22, 2006, fairly and reasonably represented her wage-earning capacity. It paid 

her compensation for partial disability beginning January 22, 2006 based on her loss of wageearning capacity (LWEC).

5

OWCP subsequently accepted appellant’s May 20, 2008 occupational disease claim (Form 

CA-2) for other affections of the right shoulder region. It assigned OWCP File No. xxxxxx669. 

Appellant stopped work on May 20, 2008 and received wage-loss compensation on the 

supplemental rolls beginning May 21, 2008 and on the periodic rolls beginning April 12, 2009. 

OWCP noted that she received compensation for four hours per day based on an LWEC

determination issued under File No. xxxxxx288. 

By decision dated May 2, 2011, issued under OWCP File No. xxxxxx669, OWCP reduced 

appellant’s wage-loss compensation, effective May 8, 2011, based on its finding that she had the 

capacity to earn wages as a surveillance system monitor working four hours per day.

In an August 13, 2015 work capacity evaluation (Form OWCP-5c) submitted under OWCP 

File No. xxxxxx288, Dr. George T. Cunningham, a chiropractor, found that appellant could return 

to work for six hours per day with sitting and walking limited to one hour per day, standing a half 

hour per day, pushing and pulling up to 10 pounds, and occasional reaching above the shoulder.

 

3 Order Remanding Case, Docket No. 17-1058 (issued February 8, 2018).

4 The claim was originally filed as a recurrence under OWCP File No. xxxxxx433. That claim, which involved a 

November 1, 2001 injury, has not been administratively combined with the present claim.

5 OWCP combined OWCP File Nos. xxxxxx699 and xxxxxx288, with OWCP File No. xxxxxx288 designated as 

the master file.
3

In a September 11, 2015 work capacity evaluation (Form OWCP-5c) submitted under 

OWCP File No. xxxxxx669, a nurse practitioner indicated that appellant had limitations due to 

right shoulder pain and reduced motion. She found that appellant could work four hours per day 

pushing, pulling, and lifting up to 10 pounds, performing repetitive movements under one hour, 

limiting reaching above the shoulder, and operating a motor vehicle over 30 minutes.

On October 21, 2015 the employing establishment offered appellant a position as a 

modified mail processing clerk for four hours per day. The duties included: sitting and walking 

intermittently for less than one hour at a time, standing intermittently for less than a half hour at a 

time, and repetitive reaching for less than a half hour at a time. The grade, step, and salary provided 

on the form is illegible. The employing establishment provided both OWCP file numbers and 

injury dates on its October 21, 2015 job offer.

In a return to work form dated November 4, 2015, the employing establishment indicated 

that appellant had accepted a job offer for four hours per day under OWCP File No. xxxxxx669. 

In a return to work form of even date, it asserted that she had returned to work under OWCP File 

No. xxxxxx288. The employing establishment noted that appellant received wage-loss 

compensation on the periodic rolls for both OWCP File No. xxxxxx288 and OWCP File No. 

xxxxxx699 and requested that it remove her from the periodic rolls on one of the claims.

On November 9, 2015 the employing establishment notified OWCP that appellant had 

returned to work on November 9, 2015. 

On February 25, 2016 appellant telephoned OWCP and questioned the accuracy of her 

compensation payments, noting that she had resumed work for four hours per day on 

November 9, 2015. OWCP advised that it would either stop or adjust her continuing wage-loss 

compensation payments.

In a letter dated April 28, 2016, the employing establishment notified OWCP that appellant 

had returned to work foUr hours per day, but was still receiving wage-loss compensation for four 

hours per day under both OWCP File Nos. xxxxxx669 and xxxxxx288.6 It requested that OWCP

remove her from the periodic rolls under OWCP File No. xxxxxx669 as of November 9, 2015.

On August 2, 2016 OWCP requested that the employing establishment provide the medical 

evidence that it used for the offered position.

In an August 4, 2016 letter, the employing establishment again advised OWCP that 

appellant was on the periodic rolls under both OWCP File Nos. xxxxxx669 and xxxxxx288. It 

requested that OWCP stop compensation payments on one of the claims as she had returned to 

work for four hours per day on November 9, 2015. The employing establishment indicated that it 

had reviewed an August 13, 2015 work capacity evaluation (Form OWCP-5c) under File No. 

xxxxxx288 and a similar form dated September 11, 2015 which had been completed by a nurse 

 

6 The employing establishment submitted a return to work form (Form CA-3) to OWCP on April 27, 2016 

requesting that it remove appellant from the periodic rolls under one of the claim numbers. It noted that she was 

receiving wage-loss compensation for four hours per day under both File No. xxxxxx288 and File No. xxxxxx699 

following her return to part-time employment.
4

practitioner under File No. xxxxxx669. It advised that it had used the more restrictive limitations 

in its offer of employment. 

On August 16, 2016 OWCP requested that the employing establishment provide pay rate 

information, including appellant’s current base pay rate and the number of hours that she worked 

weekly.

On September 26, 2016 OWCP informed appellant of its preliminary determination that 

she had received an overpayment of wage-loss compensation in the amount of $13,898.98 for the 

period November 9, 2015 through July 23, 2016 because she had returned to work four hours per 

day on November 9, 2015, but continued to receive compensation for a total of eight hours per 

day. It noted that she had received compensation for four hours per day following an LWEC

determination based on her actual earnings under OWCP File No. xxxxxx288 and compensation 

for four hours per day for an LWEC determination based on a constructed position under OWCP 

File No. xxxxxx669. OWCP found that appellant had returned to work for four hours per day 

under OWCP File No. xxxxxx288, but had continued to receive compensation under OWCP File 

No. xxxxxx288 based on its LWEC determination until July 23, 2016. It calculated the 

overpayment by determining the amount she had received from November 9 through July 23, 2016

under File No xxxxxx288, which yielded an overpayment in the amount of $13,989.98. OWCP 

further informed appellant of its preliminary determination that she was at fault in creating the 

overpayment as she knew or should have known that she was not entitled to wage-loss 

compensation for total disability after she resumed part-time employment. It requested that she 

complete the enclosed overpayment recovery questionnaire (Form OWCP-20) and submit 

supporting financial documents. Additionally, OWCP notified appellant that, within 30 days of 

the date of the letter, she could request a telephone conference, a final decision based on the written 

evidence, or a prerecoupment hearing. 

Appellant submitted a completed overpayment recovery questionnaire (Form OWCP-20) 

and requested a telephone conference on October 25, 2016. She listed monthly income of 

$2,700.00 and monthly expenses of $2,325.00. Appellant related that she telephoned OWCP in 

January 2016 about her return to work, but was informed that she did not owe anything as she was 

receiving reduced wages. She also maintained that she should receive continued payments under 

OWCP File No. xxxxxx288 instead of OWCP File No. xxxxxx669. 

By decision dated October 27, 2016, OWCP found that appellant had received an 

overpayment of compensation in the amount of $13,989.98 for the period November 9, 2015 

through July 23, 2016 and that she was at fault in the creation of the overpayment. It indicated 

that she had failed to respond to its preliminary overpayment determination.

Appellant appealed to the Board. By order dated February 8, 2018, the Board set aside the 

October 27, 2016 decision.7 The Board found that OWCP had failed to conduct a telephone 

conference prior to issuing its final overpayment determination even though she had timely 

requested a telephone conference and had timely submitted a completed overpayment recovery 

 

7 Supra note 2.
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questionnaire. The Board remanded the case for OWCP to respond to appellant’s request for a 

telephone conference.

In a memorandum of conference dated May 29, 2018, counsel questioned why OWCP had 

based the overpayment on the higher of the two LWEC payments appellant received during the 

period in question. OWCP’s claims examiner advised that she had returned to work under File 

No. xxxxxx288, and thus it had terminated her wage-loss compensation under that claim. The 

claims examiner noted, “The representative stated that they would like the overpayment calculated 

for the lower payment case [xxxxxx]669. I advised that I was not authorized to switch the debt to 

the lower paying case file. I also advised that if it could be done, the claimant would owe a lot 

more money and for a longer period.” Counsel further asserted that appellant was without fault in 

creating the overpayment as she had telephoned OWCP regarding her return to employment. 

Regarding repayment, he advised that she could repay $50.00 per month.8 

By decision dated August 27, 2018, OWCP found that appellant was without fault in the 

creation of the overpayment of wage-loss compensation in the amount of $13,968.46 for the period 

November 9, 2015 through July 23, 2016. It denied waiver of recovery of the overpayment as she 

had not returned the money to OWCP. OWCP advised appellant to submit $50.00 monthly as 

repayment of the overpayment. 

On appeal counsel notes that medical providers had released appellant to resume part-time 

work with restrictions under both OWCP File Nos. xxxxxx669 and xxxxxx288.

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.9

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.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

 

8 Appellant remains in receipt of wage-loss compensation for partial disability under OWCP File No. xxxxxx669.

9 5 U.S.C. § 8102.

10 Id. at § 8116(a); see also C.Y., Docket No. 18-0263 (issued September 14, 2018).

11 20 C.F.R. § 10.500.
6

ANALYSIS -- ISSUE 1

The Board finds that appellant received an overpayment of compensation, but that the case 

is not in posture for decision regarding the amount of the overpayment.

OWCP paid appellant wage-loss compensation for the period November 9, 2015 through 

July 23, 2016 for four hours per day under OWCP File No. xxxxxx288 based on her actual earnings 

working 20 hours per week as a modified mail clerk. It further paid her wage-loss compensation 

under OWCP File No. xxxxxx669 for that same period based on its finding that she could earn 

wages as a surveillance system monitor working four hours per day.

On October 21, 2015 the employing establishment offered appellant a position as a 

modified mail processing clerk for four hours per day. Appellant returned to work for four hours 

per day on November 9, 2015, but continued to receive wage-loss compensation based on LWEC 

determinations under both OWCP File No. xxxxxx288 and OWCP File No. xxxxxx699 without 

any offset for her actual earnings.

12

 She consequently received an overpayment of compensation.13 

The Board finds, however, that the case is not in posture for determination regarding the 

amount of the overpayment. OWCP found that appellant had returned to work under OWCP File 

No. xxxxxx288 and that, consequently, the amount of wage-loss compensation that it paid under 

that file number for the period November 9, 2015 through July 23, 2016 constituted an 

overpayment of compensation. In its August 27, 2018 decision, however, it did not provide an 

explanation for its determination that she had returned to work under OWCP File No. xxxxxx288,

rather than OWCP File No. xxxxxx699. Such an explanation is particularly necessary given the 

conflicting information from the employing establishment regarding whether it offered the position 

under OWCP File No. xxxxxx288 or OWCP File No. xxxxxx699. The Board thus finds that 

OWCP has failed to provide adequate findings of fact regarding the amount of overpayment as 

required by statute and regulation.14 

Additionally, the Board notes that OWCP determined that the entire amount that appellant 

received based on its LWEC under OWCP File No. xxxxxx288 for the period November 9, 2015 

through July 23, 2016 constituted an overpayment of compensation. OWCP’s procedures provide 

that if a claimant, after a formal LWEC rating, accepts a position with no loss of wages and returns 

to work, no wage-loss entitlement continues and compensation should be terminated.15 The salary 

and grade indicated on the job offer, however, are illegible. Prior to determining the amount of 

 

12 See L.A., Docket No. 15-1213 (issued April 27, 2016).

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

14 5 U.S.C. § 8124(a) provides that OWCP shall determine and make findings of fact and make an award for or 

against payment of compensation. 20 C.F.R. §10.126 provides in pertinent part that the final decision of OWCP shall 

contain findings of fact and a statement of reasons. See also D.S., Docket No. 16-0721 (issued October 13, 2017).

15 Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity 

Determinations, Chapter 2.1501.3(b) (June 2013).
7

the overpayment, OWCP should determine whether appellant had a continuing LWEC under the 

applicable OWCP file number subsequent to her return to part-time employment.16

Accordingly, the case will be remanded to OWCP for further development regarding the 

amount of the overpayment. After such development as deemed necessary, it shall issue a de novo

decision regarding the amount of overpayment and waiver of recovery of the overpayment.

CONCLUSION

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

November 9, 2015 through July 23, 2016. The Board further finds, however, that the case is not 

in posture for decision regarding the amount of the overpayment.17

ORDER

IT IS HEREBY ORDERED THAT the August 27, 2018 decision of the Office of

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

for further proceedings consistent with this decision of the Board.

Issued: September 3, 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

 

16 Under such circumstances, OWCP offsets actual earnings pursuant to the formula set forth in Albert C. Shadrick, 

5 ECAB 376 (1953); codified by regulation at 20 C.F.R. § 10.403.

17 In light of the Board’s findings regarding the amount of overpayment, it is premature to address the issue of 

waiver of recovery of the overpayment of compensation.