United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.P., Appellant

and

U.S. POSTAL SERVICE, DANIEL J. DOFFYN 

POST OFFICE, Chicago, IL, Employer

__________________________________________

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Docket No. 20-1035

Issued: December 1, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On April 13, 2020 appellant filed a timely appeal from a March 25, 2020 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 $6,557.28 because she continued to receive 

disability compensation following her return to work for the period November 6, 2019 through 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the March 25, 2020 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

February 1, 2020; and (2) whether OWCP properly determined that appellant was at fault in the 

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

FACTUAL HISTORY

On January 9, 2018 appellant, then a 34-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on December 28, 2017 she suffered a right shoulder sprain when lifting 

packages while in the performance of duty. On March 2, 2018 OWCP accepted the claim for right 

shoulder sprain. It subsequently expanded acceptance of the claim to include thoracic spine sprain, 

right shoulder pain, cervical spine sprain, muscle spasm, weakness, and right shoulder rotator cuff 

tear or rupture. OWCP paid appellant wage-loss compensation on the supplemental rolls from 

February 24, 2018 through September 14, 2019 and on the periodic rolls commencing

September 15, 2019.

In a letter dated December 6, 2018, OWCP outlined appellant’s entitlement to 

compensation benefits. It notified her of her continuing compensation payments and her 

responsibility to return to work if she was no longer totally disabled in connection with the 

accepted injury. An attached EN1049 form further provided:

“[T]o minimize the possibility of an overpayment of compensation, NOTIFY THIS 

OFFICE IMMEDIATELY WHEN YOU GO BACK TO WORK. If you receive 

your compensation payments via paper check, the payment shows the period for 

which payment is made. If you have worked for any portion of this period, return 

the payment to this office, even if you have already advised OWCP that you are 

working. For payments sent by electronic funds transfer (EFT), a notification of 

the date and amount of payment appears on the statement from your financial 

institution. You are expected to monitor your EFT deposits carefully, at least every 

2 weeks. If you have worked for any portion of the period for which a deposit was 

made, advise OWCP immediately so that the overpayment can be collected.”

(Emphasis in the original.)

An October 30, 2019 telephone call memorandum (Form CA-110) indicated that OWCP 

received a voicemail message from appellant that it was unable to access.

In a Form CA-110 dated January 28, 2020, appellant notified OWCP that she had returned 

to work, during the second week of November 2019, but she was unsure of the exact date. She 

asserted that she had previously informed OWCP that she would be returning to work in an earlier 

voicemail message. Appellant stated that the employing establishment had not provided a written 

job offer.

In a compensation termination sheet dated January 30, 2020, OWCP noted that appellant 

had returned to work on November 6, 2019 and received an overpayment of $6,557.28 for the 

period November 6, 2019 through February 1, 2020. For the period November 6 through 9, 2019, 

it calculated a net overpayment of $298.28 by taking the gross compensation paid, $334.14, and 

subtracting $28.90 for health benefits (HB), $2.14 for basic life insurance (BLI), and $4.82 for 

miscellaneous deductions. For the period November 10 through December 7, 2019, OWCP

calculated an overpayment of $2,087.96 by taking the gross compensation paid, $2,339.00, and 
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subtracting $202.30 for HB, $15.00 for BLI, and $33.74 for miscellaneous deductions. For the 

period December 8, 2019 through January 4, 2020, it calculated an overpayment of $2,087.96 by 

taking the gross compensation paid, $2,339.00, and subtracting $202.30 for HB, $15.00 for BLI, 

and $33.74 for miscellaneous deductions. For the period January 5 through February 1, 2020, 

OWCP calculated an overpayment of $2,083.08 by taking the gross compensation paid, $2,339.00, 

and subtracting $206.34 for HB, $15.00 for BLI, and $34.58 for miscellaneous deductions.

On February 5, 2020 OWCP received notice from the employing establishment that 

appellant had returned to work on November 6, 2019.

In a February 19, 2020 preliminary determination, OWCP informed appellant that she 

received an overpayment of compensation in the amount of $6,557.28 for the period November 6,

2019 through February 1, 2020, because she had returned to full-time, limited-duty work on 

November 6, 2019, but continued to receive wage-loss compensation through February 1, 2020.

It also determined that she was at fault in the creation of the overpayment because she accepted a 

payment that she knew or reasonably should have known, was incorrect. OWCP advised appellant 

that she could submit evidence challenging the fact or amount of the overpayment, or the finding 

of fault, and request waiver of recovery of the overpayment. Additionally, it informed her 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. OWCP requested that appellant

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

supporting financial documentation. No response was received.

By decision dated March 25, 2020, OWCP finalized the overpayment of compensation in 

the amount of $6,557.28 for the period November 6, 2019 through February 1, 2020. It determined 

that appellant was at fault in the creation of the overpayment because she accepted compensation 

payments which she knew or should have known were incorrect.

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 duty.3 Section 8129(a) of FECA provides, in pertinent part, that 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.4

Section 8116(a) of FECA provides that, while an employee is receiving compensation, the 

employee may not receive salary, pay, or remuneration of any type from the United States, except 

 

3 5 U.S.C. § 8102(a).

4

Id. at § 8129(a).
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in limited specified instances.5 OWCP’s procedures provide that an overpayment of compensation 

is created when a claimant returns to work, but continues to receive wage-loss compensation.6

ANALYSIS -- ISSUE 1

The Board finds that OWCP properly determined that appellant received an overpayment 

of compensation in the amount of $6,557.28 for the period November 6, 2019 through February 1, 

2020 because she continued to receive disability compensation following her return to work.

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

November 6, 2019. However, appellant continued to receive wage-loss compensation for total 

disability through February 1, 2020. As noted above, she was not entitled to receive compensation 

for total disability after her return to work.7 Therefore, an overpayment of compensation was 

created in this case.

In its overpayment determination, OWCP calculated the amount of the overpayment by 

taking the amount of total disability compensation received for the period November 6, 2019 

through February 1, 2020, $6,557.28, and subtracting for HB, BLI, and miscellaneous deductions. 

Appellant has not disputed the fact or amount of the overpayment. Thus, the Board finds that she 

received an overpayment of compensation in the amount of $6,557.28 during the above-noted 

period.

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LEGAL PRECEDENT -- ISSUE 2

Section 8129(b) 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 A claimant who is at fault in the creation of the overpayment is not entitled to 

waiver.10

On the issue of fault, 20 C.F.R. § 10.433(a) provides that an individual is at 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 

 

5

Id. at § 8116(a).

6 L.T., Docket No. 19-1389 (issued March 27, 2020); B.H., Docket No. 09-0292 (issued September 1, 2009); 

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Determinations in an Overpayment, Chapter 

6.300.4(g) (September 2018).

7 Supra notes 5 and 6.

8 K.P., Docket No. 19-1151 (issued March 18, 2020).

9 5 U.S.C. § 8129(b).

10 M.C., Docket No. 19-1263 (issued March 5, 2020); Gregg B. Manston, 45 ECAB 344, 354 (1994).
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only, accepted a payment which the individual knew or should have been expected to know was 

incorrect.11

The Board has held that an employee who receives wage-loss compensation payments from 

OWCP in the form of a direct deposit may not be at fault the first time incorrect funds are deposited 

into his or her account, as the acceptance of the resulting overpayment lacks the requisite 

knowledge.12 The Board has also held in cases involving a series of incorrect payments, where 

the requisite knowledge is established by a letter or telephone call from OWCP, or simply with the 

passage of time and a greater opportunity for discovery, the claimant will be at fault for accepting 

the payments subsequently deposited.13 Previous cases have held that receiving one erroneous 

direct deposit payment does not necessarily create the requisite knowledge to find that a claimant 

was at fault in the creation of the overpayment.14

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.15

ANALYSIS -- ISSUE 2

The Board finds that appellant was without fault in the creation of the overpayment for the 

period November 6 through 9, 2019, and that she was at fault in the creation of the overpayment 

for the period November 10, 2019 through February 1, 2020.

OWCP paid appellant compensation by direct deposit every 28 days. Appellant returned 

to work on November 6, 2019. The first direct deposit she received after her return to work was 

made on November 9, 2019. There is no documentation or other evidence to demonstrate that 

appellant had clear knowledge at the time the bank received the November 9, 2019 direct deposit 

that the payment was incorrect.16 The Board thus finds that she was without fault in accepting the 

initial direct deposit covering the period of the overpayment from November 6 through 9, 2019.

 

11 20 C.F.R. § 10.433(a).

12 C.H., Docket No. 19-1470 (issued January 24, 2020); Tammy Craven, 57 ECAB 689 (2006).

13 Id.

14 K.K., Docket No. 19-0978 (issued October 21, 2019); D.B., Docket No. 16-0258 (issued February 1, 

2016); W.P., 59 ECAB 514 (2008).

15 20 C.F.R. § 10.433(b); see also L.T., supra note 6.

16 See K.K., supra note 14; K.E., Docket No. 19-0978 (issued October 25, 2018).
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The Board further finds that appellant was at fault in the creation of the overpayment for 

the remaining direct deposit payments for the period November 10, 2019 through 

February 1, 2020.17

In a December 6, 2018 letter, OWCP notified appellant that to avoid an overpayment of 

compensation, she was to immediately notify it of her return to work. Appellant was required to 

reimburse OWCP for compensation paid during a period in which she worked. Although OWCP 

may have been negligent in making incorrect payments, this does not excuse a claimant from 

accepting payments he or she knew or should have known to be incorrect.18 In cases involving a 

series of incorrect payments, where the requisite knowledge is established by documentation from 

OWCP or simply with the passage of time and opportunity for discovery, a claimant will be at 

fault for accepting the payments subsequently deposited. By the time of the second payment, 

appellant should have known that she was not entitled to the same amount of wage-loss 

compensation as she had received prior to her return to work on November 6, 2019.19 After her 

receipt of the first direct deposit following her return to work, she was on notice that OWCP began 

to make payments to her in error and knew or should have known that she was not entitled to the 

benefits of the subsequent direct deposits.

The Board therefore finds that this case is not in posture for decision regarding the issue of 

waiver of recovery of the overpayment for the period November 6 through 9, 2019. The Board 

will set aside the March 25, 2020 decision regarding the issue of fault for that period and remand 

the case to OWCP to determine whether appellant is entitled to waiver of recovery of the 

overpayment covering the period November 6 through 9, 2019.20

The Board further finds that appellant was at fault in the creation of the overpayment

resulting for the remaining direct deposit payments for the period November 10, 2019 through 

February 1, 2020.21

CONCLUSION

The Board finds that OWCP properly determined that appellant received an overpayment 

of compensation in the amount of $6,557.28 for the period November 6, 2019 through February 1, 

2020 because she continued to receive disability compensation following her return to work. The 

Board further finds that she was without fault in the creation of the overpayment for the period 

November 6 through 9, 2019, and that she was at fault in the creation of the overpayment for the 

period November 10, 2019 through February 1, 2020. The case will be remanded to OWCP to 

consider waiver of recovery of the overpayment for the period November 6 through 9, 2019.

 

17 See K.P., supra note 8; D.W., Docket No. 15-0229 (issued April 17, 2014).

18 L.T., supra note 6; P.B., Docket No. 19-0329 (issued December 31, 2019); C.G., Docket No. 15-0701 (issued 

December 9, 2015).

19 Id.

20 L.T., supra note 6; K.K., supra note 14.

21 Id.
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ORDER

IT IS HEREBY ORDERED THAT the March 25, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and set aside in part, and the case is 

remanded for further proceedings consistent with this decision of the Board.

Issued: December 1, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board