United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.B., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Houston, TX, Employer 

__________________________________________ 

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Docket No. 17-1164 

Issued: September 11, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On April 4, 2017 appellant filed a timely appeal from a November 1, 2016 merit decision 

and a March 21, 2017 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP).1 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. 

ISSUES 

The issues are: (1) whether appellant received an overpayment of compensation in the 

amount of $1,454.34 from September 6 to 17, 2016; (2) whether OWCP properly denied waiver 

 1

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from November 1, 2016, the date of OWCP’s last merit decision, was 

April 30, 2017, a Sunday; consequently, the period for filing the appeal ran to the next business day, Monday, 

May 1, 2017. Since using May 5, 2017, the date the appeal was received by the Clerk of the Appellate Boards 

would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the 

U.S. Postal Service postmark is April 4, 2017, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1). 

2

 5 U.S.C. § 8101 et seq. 
2

of recovery of the overpayment; and (3) whether OWCP properly denied appellant’s request for 

a prerecoupment hearing. 

FACTUAL HISTORY 

On November 27, 2013 appellant, then a 50-year-old information technology specialist, 

filed a traumatic injury claim (Form CA-1) alleging that on November 26, 2013 he injured his 

right knee, low back, and ankle in the performance of duty. He did not stop work. OWCP 

accepted the claim for sprains of the lateral collateral ligament and cruciate ligament of the right 

knee, a tear of the right medial meniscus, and a right ankle sprain. 

On March 19, 2015 appellant underwent surgery on his right knee. OWCP paid wageloss compensation for total disability from March 19 to April 19, 2015. On August 1, 2016 

appellant underwent a right partial medial and lateral meniscectomy. OWCP paid compensation 

for partial disability on August 5, 2016 and for total wage-loss disability from August 6 to 

September 17, 2016. 

Appellant, on September 6, 2016, returned to full-time modified employment with no 

wage loss. 

OWCP, on September 26, 2016, advised appellant of its preliminary determination that 

he received an overpayment of compensation in the amount of $1,454.34 because he had 

returned to full-time work on September 6, 2016, but received wage-loss compensation for total 

disability through September 17, 2016. It further advised him of its preliminary determination 

that he was without fault in the creation of the overpayment. OWCP requested that appellant 

complete the enclosed overpayment recovery questionnaire and submit supporting financial 

documents. Additionally, it notified him that, within 30 days of the date of the letter, he could 

request a telephone conference, a final decision based on the written evidence or a 

prerecoupment hearing. 

On October 3, 2016 the U.S. Postal Service returned the preliminary notice of 

overpayment to OWCP as undeliverable. It indicated on the envelope that it was returned to 

sender as not deliverable as addressed and it could not be forwarded. 

By decision dated November 1, 2016, OWCP determined that appellant received an 

overpayment of compensation in the amount of $1,454.34 for the period September 6 

through 17, 2016. It found that he was without fault in the creation of the overpayment, but 

denied waiver as he had not shown that recovery would defeat the purpose of FECA or be 

against equity and good conscience. OWCP noted that appellant had not responded to the 

preliminary overpayment determination. 

On November 7, 2016 the U.S. Postal Service returned the November 1, 2016 decision as 

undeliverable. 

Appellant, on January 17, 2017, submitted a change of address request to OWCP. On 

January 20, 2017 he telephoned OWCP regarding the overpayment. OWCP noted that all 

correspondence regarding the overpayment had been returned as appellant had not updated his 

address. It advised that it would resend the information. 
3

By letter dated January 23, 2017, OWCP forwarded to appellant all of the preliminary 

overpayment documentation. 

On February 24, 2017 appellant sent a completed overpayment action request to OWCP’s 

Branch of Hearings and Review. He argued that he was not at fault in creating the overpayment 

and requested waiver. Appellant also submitted a completed overpayment recovery 

questionnaire. 

In a decision dated March 21, 2017, OWCP denied appellant’s request for a 

prerecoupment hearing. It found that a final overpayment decision was not subject to the hearing 

provisions of 5 U.S.C. § 8124(b). 

On appeal appellant contends that OWCP’s decision is inaccurate, noting that he 

provided appropriate information. He requests waiver of recovery of the overpayment. 

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.3

Section 8116(a) 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 

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

limited circumstances.4 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 from earning the wages earned before the work-related injury.5

A claimant is not entitled to receive temporary total disability and actual earnings for the 

same period.6

 OWCP procedures provide that an overpayment of compensation is created when 

a claimant returns to work, but continues to receive wage-loss compensation.7

OWCP is required to follow certain procedures in overpayment cases. Its regulations 

provide that, before seeking to recover an overpayment or adjust benefits, it will advise the 

individual in writing that the overpayment exists and the amount of the overpayment.8

 The 

written notification must also include a preliminary finding regarding whether the individual was 

at fault in the creation of the overpayment.9

 OWCP must inform the individual of his or her right 

 3

 5 U.S.C. § 8102. 

4 Id. at § 8116(a). 

5

 20 C.F.R. § 10.500(a). 

6 See M.M., Docket No. 15-0265 (issued May 27, 2015); R.W., Docket No. 13-1285 (issued November 13, 2013). 

7

 Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 

6.200.2(a) (May 2004). 

8

 20 C.F.R. § 10.431(a). 

9 Id. at § 10.431(b). 
4

to challenge the fact or amount of the overpayment, the right to contest the preliminary finding 

of fault in the creation of the overpayment, if applicable, and the right to request a waiver of 

recovery of the overpayment.10 Its procedures further provide that a preliminary finding of 

overpayment must be provided within 30 days and must clearly identify the reason that the 

overpayment occurred and the basis for any fault finding.11

In the absence of evidence to the contrary, a letter properly addressed and mailed in the 

due course of business, such as in the course of OWCP’s daily activities, is presumed to have 

been received at the mailing address in due course.12 This is known as the mailbox rule.13 As a 

rebuttable presumption, receipt will not be presumed when there is evidence of nondelivery.14

ANALYSIS -- ISSUE 1 

The Board finds that the case is not in posture for decision. 

As discussed, OWCP is required to follow certain procedures in overpayment cases, 

including providing written notice informing the individual of the existence and amount of the 

overpayment before seeking recovery or adjusting benefits.15 It must additionally advise the 

individual whether he is at fault in the creation of the overpayment,16 his right to challenge the 

fact or amount of the overpayment, his right to contest the preliminary finding of fault in the 

creation of the overpayment and, if applicable, his right to request a waiver of recovery of the 

overpayment.17 OWCP must provide a preliminary finding of overpayment within 30 days that 

clearly identifies the reason the overpayment occurred and the basis for any fault finding.18

On September 26, 2016 OWCP mailed appellant a properly addressed notice of 

preliminary overpayment determination. The mailbox rule provides that proper and timely 

mailing of a document in the ordinary course of business raises a rebuttable presumption of 

receipt by the addressee.19 As a rebuttable presumption, receipt will not be presumed, however, 

when there is evidence of nondelivery, and the presumption may also be rebutted by other 

evidence that supports that the addressee did not receive the correspondence. 

 10 Id. at § 10.431(d). 

11 Supra note 7 at Chapter 6.200.4(a) (June 2009). 

12 See L.G., Docket No. 17-0004 (issued April 17, 2017). 

13 See James A. Gray, 54 ECAB 277 (2002). 

14 See C.O., Docket No. 10-1796 (issued March 23, 2011); M.U., Docket No. 09-0526 (issued 

September 14, 2009). 

15 20 C.F.R. § 10.431(a). 

16 Id. at § 10.431(b). 

17 Id. at § 10.431(d). 

18 See supra note 11. 

19 See supra note 13. 
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The record in this case contains direct evidence of nondelivery of the September 26, 2016 

preliminary overpayment determination. Although properly addressed to appellant, the U.S. Post 

Office returned the notice to OWCP as undeliverable. OWCP received the nondelivered 

preliminary overpayment determination on October 3, 2016. Consequently, appellant has 

rebutted the presumption of receipt of the September 26, 2016 preliminary determination of 

overpayment under the mailbox rule.20

As appellant did not receive a copy of the preliminary overpayment determination, the 

case will be remanded to OWCP to issue a new preliminary determination of overpayment in 

accordance with its procedures.21 The forwarding of the preliminary and final overpayment 

determination on January 23, 2017 by OWCP does not constitute a reissuance with appeal rights. 

CONCLUSION 

The Board finds that the case is not in posture for decision regarding whether appellant 

received an overpayment of compensation.22

 20 See M.U., Docket No. 09-0526 (issued September 14, 2009). 

21 Order Remanding Case, Docket No. 13-0933 (issued August 23, 2013). 

22 In view of the Board’s disposition of the issue of whether appellant received an overpayment of compensation, 

the issues of waiver and OWCP’s denial of his request for a prerecoupment hearing are moot. 
6

ORDER 

IT IS HEREBY ORDERED THAT the March 21, 2017 and November 1, 2016 merit 

decisions of the Office of Workers’ Compensation Programs are set aside and the case is 

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

Issued: September 11, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board