United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

CAROL STREAM PROCESSING & 

DISTRIBUTION CENTER, Carol Stream, IL, 

Employer 

__________________________________________ 

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Docket No. 14-1666 

Issued: May 18, 2015 

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 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On July 24, 2014 appellant filed a timely appeal from a June 26, 2014 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. 

ISSUES 

The issues are: (1) whether OWCP properly found that appellant received a $4,483.25 

overpayment of compensation from October 22 to December 14, 2013; and (2) whether it 

properly found appellant at fault in creation of the overpayment, thereby precluding waiver of 

the overpayment. 

 1

 5 U.S.C. § 8101 et seq. 
2

On appeal, appellant asserts that she cannot repay the overpayment due to financial 

hardship. 

FACTUAL HISTORY 

On June 17, 2011 appellant, then a 55-year-old manual distribution clerk, filed an 

occupational disease claim alleging that she suffered from bilateral hip arthritis as a result of her 

repetitive work duties. OWCP accepted the claim for aggravation of bilateral osteoarthrosis. 

By letter dated January 16, 2013, OWCP advised appellant that compensation would be 

paid every 28 days. It noted that the first payment would be for the period December 8, 2012 to 

January 12, 2013 and regular payments would be made starting for the period January 13 to 

February 9, 2013. OWCP advised appellant that, when she returned to work, she must return any 

payment received if she worked for any portion of the payment period. 

On December 16, 2013 appellant informed OWCP that she had returned to full-time fullduty work on October 22, 2013.2

 

OWCP noted that appellant received her compensation payments by check. For the 

period October 22 to November 16, 2013, under check dated November 16, 2013, appellant was 

paid $2,158.60 in net wage-loss compensation. From November 17 to December 14, 2013, 

under check dated December 14, 2013, she received $2,324.65. OWCP found that the total 

amount of $4,483.25 constituted an overpayment of compensation as appellant received wageloss compensation for total disability after returning to work on October 22, 2013 with no loss of 

wages. 

By letter dated May 19, 2014, OWCP advised appellant of its preliminary determination 

that she was overpaid $4,483.25 in compensation from October 22 through December 14, 2013. 

It explained the calculation of the overpayment and found that she was at fault in creating the 

overpayment as she accepted payments which she knew or should have known to be incorrect as 

there was no entitlement to receive wage-loss benefits after returning to full-time work. OWCP 

afforded appellant 30 days to submit financial information and to request either a telephone 

conference, decision on the written evidence, or a prerecoupment hearing. 

Appellant did not respond to the preliminary determination. In a decision dated June 26, 

2014, OWCP finalized the fact and amount of the preliminary overpayment determination, and 

the finding of fault. It directed recovery of the full amount of the overpayment within 30 days. 

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 his duty.3

 Section 8129(a) of FECA provides, in pertinent part, “When an 

 2

 In an October 3, 2013 work restriction form, Dr. Eugene P. Lopez, a Board-certified orthopedic surgeon, 

released appellant to return to work without restrictions on October 22, 2013. 

3

 5 U.S.C. § 8102(a). 
3

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.”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 OWCP 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.6

 An 

employee is not entitled to compensation for total disability after returning to full-time work.7

ANALYSIS -- ISSUE 1 

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

amount of $4,483.25 for the period October 22 to December 14, 2013. The record supports that 

she continued to receive total disability compensation from the date of her return to work on 

October 22 to December 14, 2013. For this period appellant received compensation in the 

amount of $4,483.25. As she was not entitled to compensation after her return to work, OWCP 

properly found that an overpayment of compensation in the amount of $4,483.25 had been 

created.8

LEGAL PRECEDENT -- ISSUE 2 

Section 8129(b) of FECA provides that adjustment or recovery by the United States may 

not be made when incorrect payment has been made to an individual who is without fault and 

when adjustment or recovery would defeat the purpose of this subchapter or would be against 

equity and good conscience.9 No waiver of an overpayment is possible if the claimant is at fault 

in creating the overpayment.10

On the issue of fault, 20 C.F.R. § 10.433(a) 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; or (2) failed to furnish information which 

the individual knew or should have known to be material; or (3) with respect to the overpaid 

 4 Id. at § 8129(a). 

5 Id. at § 8116(a); R.H., Docket No. 09-1981 (issued June 11, 2010). 

6 Id. at § 10.500. 

7 M.J., Docket No. 09-469 (issued August 24, 2009). 

8

 5 U.S.C. § 8116(a); 20 C.F.R. § 10.500. 

9 Id. at § 8129(b). 

10 Gregg B. Manston, 45 ECAB 344, 354 (1994). 
4

individual only, accepted a payment which the individual knew or should have been expected to 

know was incorrect.11

With respect to whether an individual is without fault, section 10.433(b) of OWCP’s 

regulations provide that whether or not OWCP determines that an individual was at fault with 

respect to the creation of an overpayment depends on the circumstances surrounding the 

overpayment. The degree of care expected may vary with the complexity of those circumstances 

and the individual’s capacity to realize that he or she is being overpaid.12 

ANALYSIS -- ISSUE 2 

OWCP applied the third standard in this case, finding that appellant accepted 

compensation payments for the period October 22 to December 14, 2013 that she knew or should 

have known were incorrect. Appellant accepted compensation payments by checks dated 

November 16 and December 14, 2013, encompassing the period October 22 to December 14, 

2013, after she returned to work on October 22, 2013 with no wage loss. 

OWCP advised appellant by letter dated January 16, 2013 of her obligation to return any 

compensation payments that covered a period after she returned to work. This establishes that 

she knew or should have known that she was not entitled to accept compensation for total 

disability after she returned to full-time work at her regular salary. Additionally, each check and 

form sent with the check reflects the specific period for which the payment was being made. 

Appellant did not return either the November 16 or December 14, 2013 check as instructed. 

OWCP properly found her at fault in creation of the overpayment as the evidence reflects that 

she accepted payments which she knew or should have known to be incorrect. Therefore, 

recovery of the $4,483.25 overpayment of compensation may not be waived.13

On appeal, appellant asserted that she could not repay the overpayment due to financial 

hardship. However, for the reasons stated, she is not entitled to a waiver of recovery. 

CONCLUSION 

The Board finds that OWCP properly found that appellant received a $4,483.25 

overpayment of compensation from October 22 to December 14, 2013. The Board further finds 

that OWCP properly found that appellant was at fault in creation of the overpayment and thereby 

not entitled to waiver of recovery of the overpayment. 

 11 20 C.F.R. § 10.433(a). See Kenneth E. Rush, 51 ECAB 116, 118 (1999). 

12 Id. at § 10.433(b). 

13 The Board does not have jurisdiction over the recovery of the overpayment as OWCP did not direct recovery 

from continuing compensation payments. See Desiderio Martinez, 55 ECAB 245 (2004) (the Board’s jurisdiction is 

limited to reviewing those cases where OWCP seeks recovery from continuing compensation benefits under FECA). 
5

ORDER 

IT IS HEREBY ORDERED THAT the June 26, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 18, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board