United States Department of Labor

Employees’ Compensation Appeals Board

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D.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Castle Rock, CO, Employer

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Docket No. 18-1173

Issued: June 13, 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 22, 2018 appellant filed a timely appeal from January 3 and March 12, 2018 merit 

decisions 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 terminated appellant’s compensation, 

effective December 27, 2017, because he forfeited his entitlement to compensation beginning that 

same date pursuant to 5 U.S.C. § 8148(a); (2) whether OWCP properly found that appellant 

 

1 5 U.S.C. § 8101 et seq.

2 The record provided to the Board includes evidence received after OWCP issued its March 12, 2018 decision. 

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

received an overpayment of compensation in the amount of $1,146.84 for the period December 27, 

2017 to January 6, 2018 based on the forfeiture; and (3) whether OWCP properly found appellant 

at fault in the creation of the overpayment, thereby precluding waiver of recovery of the 

overpayment.

FACTUAL HISTORY

On December 23, 1993 appellant, then a 37-year-old mail carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on December 21, 1993 he sustained a right leg fracture when he 

slipped and fell on ice and snow while in the performance of duty. OWCP accepted the claim for 

fracture of right tibia fibula and placed appellant on the periodic compensation rolls effective 

July 24, 1994. Appellant returned to full-time work with restrictions for the employing 

establishment on April 26, 1999.

The record contains an order signed on December 27, 2017 by a judge for the U.S. District 

Court for the District of Nevada accepting appellant’s guilty plea under 18 U.S.C. § 287 to one 

count of False, Fictitious, or Fraudulent Claims to obtain FECA compensation benefits. The record 

also contains copies of the plea agreement and criminal indictment which acknowledge that 

appellant knowingly and intentionally submitted Forms OWCP-915 requesting reimbursement of 

medical expenses that he had not incurred. As purported proof of his payment of those expenses, 

appellant created false, fictitious, and fraudulent invoices from companies that either never existed 

or no longer did business at the time of the invoice. As further purported proof of his payment, 

appellant submitted false, fictitious, and fraudulent documents purporting to prove that he paid for 

the requested medical expenses using personal checks, when in fact no such payment had been 

made. Restitution was not ordered.

By decision dated January 3, 2018, OWCP found that appellant had forfeited his

entitlement to compensation beginning December 27, 2017. It noted that on December 27, 2017

he pled guilty to one count of making False, Fictitious, and Fraudulent Claims, in violation of 18 

U.S.C. § 287 in relationship to obtaining workers’ compensation benefits. OWCP advised that, as 

a result of his conviction, and in accordance with 5 U.S.C. § 8148(a) and 20 C.F.R. § 10.17, 

appellant was not entitled to receive further benefits under FECA. It noted that it would only pay 

for any authorized medical treatments appellant received prior to the date of the conviction. 

Compensation benefits, including entitlement to schedule award benefits, were terminated 

December 27, 2017, the date of appellant’s conviction. OWCP noted that any checks received for 

benefits on or after December 27, 2017 must be returned to OWCP.

On January 30, 2018 OWCP advised appellant of its preliminary determination that he had 

received an overpayment of compensation in the amount of $1,146.84 for the period December 27, 

2017 to January 6, 2018 because he received compensation on the periodic rolls after he pled guilty

under 18 U.S.C. § 287 to one count of False, Fictitious, and Fraudulent Claims to obtain FECA 

compensation benefits. It also made a preliminary determination that he was at fault in the creation 

of the overpayment because he accepted a payment he knew or reasonably should have known was 

incorrect, thereby precluding waiver of recovery of the overpayment. OWCP explained that 

appellant was paid $2,919.24 net compensation over the course of a 28-day periodic roll cycle and 

he was over paid 11 days from December 27, 2017 to January 6, 2018. It calculated that $2,919.24 

divided by 28 days (days in a periodic roll cycle) times 11 days (days over paid) equaled an 
3

overpayment in the amount of $1,146.84. OWCP provided appellant 30 days to submit evidence 

and argument challenging the proposed actions. Appellant did not respond within the allotted 

period.

By decision dated March 12, 2018, OWCP finalized the preliminary determination of an 

overpayment of compensation in the amount of $1,146.84 for the period December 27, 2017 to 

January 6, 2018 based on the forfeiture of his compensation under 18 U.S.C. § 287. It also found 

that he was at fault in the creation of the $1,146.84 overpayment because he accepted a payment 

he knew or reasonably should have known was incorrect, thereby precluding waiver of recovery

of the overpayment. OWCP instructed appellant to pay the full amount of $1,146.84 within 30 

days or to contact OWCP so that appropriate arrangements for recovery (such as installment 

payments) could be made.

LEGAL PRECEDENT -- ISSUE 1

Public Law No. 103-333, enacted on September 30, 1994, amended FECA by adding 5 

U.S.C. § 8148, which provides for the termination of benefits payable to beneficiaries who have 

been convicted of defrauding the program. Section 8148(a) specifically provides that an individual 

convicted of a violation of 18 U.S.C. § 1920 or any other federal or state criminal statute relating 

to fraud in the application for or receipt of a benefit under FECA, shall forfeit, as of the date of 

such conviction, entitlement to any benefit to which such individual would otherwise be entitled 

under FECA for an injury occurring on or before the date of such conviction. Such forfeiture shall 

be in addition to any action the Secretary may take under section 81063(forfeiture) or section 81294

(recovery of overpayments) of FECA.5

Section 10.17 of OWCP’s implementing regulations provides that when a claimant pleads 

guilty to federal or state criminal charges of fraud in connection with receipt of Federal 

Government benefits, the claimant’s entitlement to further compensation benefits will terminate 

effective the date the guilty plea is accepted. Termination of entitlement under this section is not 

affected by any subsequent change in or recurrence of the beneficiary’s medical condition.6

OWCP’s procedures provide that in support of termination or suspension of compensation 

the record must contain copies of the indictment or information and the plea agreement, if any, or 

the document containing the guilty verdict. Further, this evidence must establish that the 

individual was convicted and the conviction is related to the claim for or receipt of compensation 

benefits under FECA.7 The termination is effective on the date of the verdict or on the date the 

 

3 5 U.S.C. § 8106.

4

Id. at § 8129.

5

Id. at § 8148; see F.C., 59 ECAB 666 (2007).

6 20 C.F.R. § 10.17.

7 Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.17c(2) (February 2013).
4

guilty plea is accepted and guilt adjudicated.8 Because of the criminal basis for the termination, 

no pretermination notice is required before a final decision is issued.9

ANALYSIS -- ISSUE 1

The Board finds that OWCP properly terminated appellant’s compensation, effective 

December 27, 2017, because he forfeited his entitlement to compensation beginning that date

pursuant to 5 U.S.C. § 8148(a) as he was convicted in federal court under a statute relating to false 

claims in the application for or receipt of compensation benefits under FECA. 

On December 27, 2017 a judge for the U.S. District Court for the District of Nevada

accepted appellant’s guilty plea to one count of violating 18 U.S.C. § 287 (False, Fictitious, or 

Fraudulent Claims) when he knowingly and intentionally obtained FECA benefit payments on a 

fraudulent basis. Under section 8148(a) of FECA, a claimant who is convicted of fraud in 

obtaining compensation benefits under 18 U.S.C. § 1920 or any other federal or state criminal 

statute relating to fraud in the application for or receipt of a benefit under FECA is permanently 

barred from receiving compensation under FECA.10

The record contains copies of the guilty verdict. OWCP’s January 3, 2018 letter further 

detailed the circumstances under which appellant committed fraud under FECA. The Board finds 

that this evidence establishes that appellant was convicted of fraud in obtaining FECA 

compensation benefits.11 OWCP procedures provide that the termination is effective on the date 

the guilty plea is accepted and guilt adjudicated.12 The Board finds that OWCP properly 

terminated appellant’s compensation benefits on December 27, 2017.

13

LEGAL PRECEDENT -- ISSUE 2

Section 8129(a) of FECA provides, in pertinent part, “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.”

14

 

8

Id. at Chapter 2.1400.17(d) (February 2013).

9

Id. at Chapter 2.1400.4(a)(6) (February 2013).

10 5 U.S.C. § 8148(a); see D.B., Docket No. 16-0988 (issued September 6, 2016).

11 See supra note 7.

12 See supra note 8.

13 See John L. Hoss, Jr., 54 ECAB 239 (2002); Bob R. Gilley, 51 ECAB 377 (2000).

14 Id. at § 8129(a).
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Section 10.529(b) of OWCP’s implementing regulations provides as follows:

“(b) Where the right to compensation is forfeited, OWCP shall recover any 

compensation already paid for the period of forfeiture pursuant to 5 U.S.C. § 8129 

and other relevant statutes.”

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ANALYSIS -- ISSUE 2

The Board finds that OWCP properly found that appellant received an overpayment of 

compensation in the amount of $1,146.84 for the period December 27, 2017 to January 6, 2018 

based on the forfeiture.

The record reveals that appellant received wage-loss compensation benefits for the period

December 27, 2017 to January 6, 2018 after his conviction on December 27, 2017 for false claims

under 18 U.S.C. § 287 and subsequent to the forfeiture. OWCP determined that during this period 

he received an overpayment of compensation in the amount of $1,146.84. The record contains 

documentation of OWCP’s calculations and there is no contrary evidence of record. OWCP 

explained the basis of the overpayment and appellant does not dispute that he received 

compensation payments for the period December 27, 2017 to January 6, 2018 following his false 

claims conviction. Thus, the Board finds that he received an overpayment of compensation in the 

amount of $1,146.84.

LEGAL PRECEDENT -- ISSUE 3

Section 8129(a) of FECA provides that, when an overpayment of compensation has been 

made because of an error of fact or law, adjustment shall be made by decreasing later payments to 

which an individual is entitled. The only exception to this requirement is when an incorrect 

payment has been made to an individual who is without fault and when adjustment or recovery 

would defeat the purpose of FECA or be against equity and good conscience.16 No waiver of 

payment is possible if appellant is with fault in helping to create the overpayment.17

Section 10.433(a) of OWCP’s implementing regulations 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; (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.18

 

15 Id.

16 5 U.S.C. § 8129(b).

17 Robert W. O Brien, 36 ECAB 541, 547 (1985).

18 20 C.F.R. § 10.433(a); Kenneth E. Rush, 51 ECAB 116, 118 (1999).
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ANALYSIS -- ISSUE 3

The Board finds that OWCP properly found appellant at fault in the creation of the 

overpayment, thereby precluding waiver of recovery of the overpayment.

Upon its application of the third standard to determine if appellant was at fault in the 

creation of the overpayment, OWCP found that appellant had knowledge that the payment was 

incorrect. The Board finds that the record establishes that he knew or should have known that he 

accepted incorrect compensation payments by filing false claims for FECA benefits.19

When appellant pled guilty to violating 18 U.S.C. § 287, he admitted that he knowingly 

and intentionally obtained FECA compensation benefits to which he knew he was not entitled. 

The December 27, 2017 plea of guilt alone is sufficient to establish that appellant knew that he 

had accepted incorrect FECA payments. Appellant knew or should have known that his continued 

receipt of FECA benefits after his December 27, 2017 conviction was incorrect. As appellant 

accepted compensation benefits from OWCP, which covered the period December 27, 2017 to 

January 6, 2018, the Board finds that he was at fault in the creation of the $1,146.84 overpayment 

and is not entitled to waiver of recovery of the overpayment.20

Lastly, the Board notes that its jurisdiction is limited to reviewing those cases where OWCP 

seeks recovery from continuing compensation benefits under FECA. Appellant forfeited further 

compensation benefits commencing December 27, 2017. Thus, as he is no longer in receipt of 

wage-loss compensation benefits, the Board lacks jurisdiction over OWCP’s recovery of the 

overpayment.21

CONCLUSION

The Board finds that OWCP properly terminated appellant’s compensation, effective 

December 27, 2017, because he forfeited his entitlement to compensation beginning that same date

pursuant to 5 U.S.C. § 8148(a). The Board further finds that OWCP properly found that appellant 

received an overpayment of compensation in the amount of $1,146.84 for the period December 27, 

2017 to January 6, 2018 based on the forfeiture and properly found appellant at fault in the creation 

of the overpayment, thereby precluding waiver of recovery.

 

19 See R.M., Docket No. 17-0141 (issued March 28, 2018).

20 See K.R., Docket No. 14-0434 (issued October 7, 2014).

21 See D.R., 59 ECAB 148 (2007) (with respect to the recovery of an overpayment, the Board’s jurisdiction is 

limited to those cases where OWCP seeks recovery from continuing compensation benefits under FECA).
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ORDER

IT IS HEREBY ORDERED THAT the March 12 and January 3, 2018 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: June 13, 2019

Washington, DC

Christopher J. Godfrey, 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