United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.Q., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF PRISONS, Butner, NC, Employer

__________________________________________

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Docket No. 18-0964

Issued: October 8, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 9, 2018 appellant filed a timely appeal from a March 9, 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 appellant received an overpayment of compensation in the 

amount of $1,622.85 for the period January 22 through February 3, 2018; and (2) whether OWCP

abused its discretion in denying waiver of recovery of the overpayment.

 

1

5 U.S.C. § 8101 et seq.

2 The Board 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

FACTUAL HISTORY

On August 29, 2017 appellant, then a 47-year-old correctional officer, sustained injuries to 

his right upper extremity and left lower extremity while navigating an obstacle course during 

employment-related training. He stopped work on August 29, 2017 and received continuation of 

pay (COP). OWCP accepted appellant’s traumatic injury claim (Form CA-1) for right upper arm 

spontaneous rupture of other tendons, left knee spontaneous disruption of anterior cruciate 

ligament, left knee derangement of anterior horn of lateral meniscus, and left knee derangement of 

posterior horn of medial meniscus. On September 13, 2017 appellant underwent OWCP-approved 

right shoulder surgery, and on November 20, 2017 he underwent a left knee arthroscopic 

procedure, which OWCP similarly authorized. OWCP paid him wage-loss compensation for 

temporary total disability on the supplemental rolls from October 16 through November 11, 2017 

and placed him on the periodic rolls beginning November 12, 2017.

On November 9, 2017 OWCP acknowledged receipt of appellant’s direct deposit sign-up 

form dated October 11, 2017.

On January 22, 2018 the employing establishment offered appellant a full-time, limitedduty assignment in conformance with work restrictions established by his physician on 

January 16, 2018. Appellant accepted the position and returned to work on January 22, 2018 with 

no loss in pay.

In a compensation termination worksheet dated January 22, 2018, OWCP indicated that 

appellant had been placed on the periodic rolls as a result of having surgery. Appellant returned 

to work full-time, limited duty on January 22, 2018. Using direct deposit, OWCP paid him the net 

amount of $1,622.85 in compensation for total disability from January 22 through

February 3, 2018. 

On February 6, 2018 OWCP notified appellant of its preliminary determination that he 

received an overpayment of compensation in the amount of $1,622.85 for the period January 22 

through February 3, 2018 because he continued to receive compensation for total disability 

following his return to full-time work on January 22, 2018. It noted that when the employing 

establishment advised that he had returned to work with no wage loss on January 22, 2018, it was 

too late to stop the payment issued by electronic funds transfer (EFT) on February 2, 2018. Thus 

the overpayment was created. Further, OWCP found that appellant was without fault in the 

creation of the overpayment because he did not know, nor could he have been reasonably expected 

to know, that his compensation was paid incorrectly. It indicated that because the payment that 

created this debt was only issued a few days before, it was reasonable to assume that he had not 

reviewed his bank statement. OWCP further informed appellant that he 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.

In a February 20, 2018 statement, appellant indicated that the overpayment occurred 

through no fault of his own and he requested waiver of recovery. He indicated that he was 

informed by the employing establishment that all paperwork was sent out on January 19, 2018. 

Appellant made further inquiries of the safety department on January 22, 2018, and asked whether 
3

there was anything he needed to submit and he was told the paperwork was complete. He asserted 

that, if the paperwork was submitted on January 19, 2018, there was ample time for OWCP to 

revise the payment.

Appellant submitted an overpayment recovery questionnaire (Form OWCP-20) on 

February 20, 2018. The form indicated that his monthly income totaled zero and expenses totaled 

$5,000.00.

By decision dated March 9, 2018, OWCP finalized its preliminary determination that 

appellant received an overpayment of compensation in the amount of $1,622.85 for the period 

January 22 through February 3, 2018 based on his receipt of compensation for disability after his 

return to full-time work. It further found that he was without fault in the creation of the 

overpayment, because he was not, nor could he have been, aware that he was not entitled to the 

payments received. OWCP noted that appellant had not submitted financial information justifying 

waiver of recovery of the overpayment. It requested that he forward payment in the amount of 

$100.00 each month commencing April 1, 2018.

3

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.4

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.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

ANALYSIS -- ISSUE 1

The Board finds that appellant received an overpayment of compensation in the amount of 

$1,622.85 for the period January 22 through February 3, 2018. Appellant resumed work on 

January 22, 2018 with no loss in pay. However, OWCP continued to pay him wage-loss 

compensation for temporary total disability following his return to work. As noted above, a 

 

3 With respect to recovery of the overpayment, the Board’s jurisdiction is limited to reviewing those cases where 

OWCP seeks recovery from continuing compensation benefits under FECA. As appellant is no longer receiving 

wage-loss compensation, the Board does not have jurisdiction with respect to recovery of the overpayment under the 

Debt Collection Act. See E.F., Docket No. 18-1320 (issued March 13, 2019).

4

5 U.S.C. § 8102.

5

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

6

20 C.F.R. § 10.500.
4

claimant is not entitled to receive compensation for total disability during a period in which he/she 

had actual earnings.7 Therefore, an overpayment of compensation was created in this case.8 

OWCP documented that it paid appellant, via direct deposit, $1,622.85 for the period January 22 

through February 3, 2018. Thus, the Board finds that appellant received an overpayment of 

compensation in the amount of $1,622.85 during the above-noted period.9

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA provides that an overpayment must be recovered unless “incorrect 

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

would defeat the purpose of [FECA] or would be against equity and good conscience.”

10

 

Section 10.438 of OWCP’s regulations provide that the individual who received the 

overpayment is responsible for providing information about income, expenses, and assets as 

specified by OWCP. This information is needed to determine whether or not recovery of an 

overpayment would defeat the purpose of FECA or be against equity and good conscience. Failure 

to submit the requested information within 30 days of the request shall result in denial of waiver. 11

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied waiver of recovery of the $1,622.85 

overpayment of compensation.

As OWCP found appellant without fault in the creation of the overpayment, waiver must 

be considered, and repayment is still required unless adjustment or recovery of the overpayment 

would defeat the purpose of FECA or be against equity and good conscience.12 Appellant, 

however, had the responsibility to provide the appropriate financial information to OWCP.13

In its preliminary overpayment determination dated February 6, 2018 OWCP requested 

that appellant provide a completed overpayment recovery questionnaire and supporting financial 

information. It advised him that waiver of recovery would be denied if he failed to furnish the 

requested financial information within 30 days. Although appellant returned the overpayment 

recovery questionnaire, he neglected to report his monthly income, and failed to substantiate his 

reported monthly expenses of $5,000.00. As a result, OWCP did not have the necessary financial 

information to properly determine whether recovery of the overpayment would defeat the purpose 

 

7 L.W., Docket No. 17-0356 (issued June 22, 2017).

8

See K.E., Docket No. 18-0687 (issued October 25, 2018).

9

Id.

10 5 U.S.C. § 8129(a)-(b); see D.C., Docket No. 17-0559 (issued June 21, 2018).

11 20 C.F.R. § 10.438.

12 Id.; see also O.B., Docket No. 19-0034 (issued April22, 2019).

13 Id.; see also S.M., Docket No. 17-1802 (issued August 20, 2018).
5

of FECA or if recovery would be against equity and good conscience. Consequently, as appellant 

did not submit the financial information required under section 10.438 of OWCP’s regulations, 

which was necessary to determine his eligibility for waiver, the Board finds that OWCP properly 

denied waiver of recovery of the overpayment of compensation in the amount of $1,622.85.

14

CONCLUSION

The Board finds that OWCP properly found an overpayment of compensation in the

amount of $1,622.85 for the period January 22 through February 3, 2018. The Board also finds

that OWCP did not abuse its discretion in denying waiver of recovery of the overpayment.

ORDER

IT IS HEREBY ORDERED THAT the March 9, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: October 8, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

14 E.K., Docket No. 18-0587 (issued October 1, 2018).