United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.S., Appellant

and

DEPARTMENT OF THE AIR FORCE, USAF 

MEDICAL CENTER, TRAVIS AIR FORCE 

BASE, CA, Employer

__________________________________________

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Docket No. 20-1018

Issued: December 3, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On April 1, 2020 appellant filed a timely appeal from a January 17, 2020 merit decision of 

the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’

1 Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the 

Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In 

support of appellant’s oral argument request, it was asserted that oral argument should be granted because the finding 

of an overpayment of compensation was improper. The Board, in exercising its discretion, denies appellant’s request 

for oral argument because the matter raised requires an evaluation of the evidence presented. As such, the arguments 

on appeal can adequately be addressed in a decision based on a review of the case record. Oral argument in this appeal 

would further delay issuance of a Board decision and not serve a useful purpose. As such, the oral argument request 

is denied and this decision is based on the case record as submitted to the Board.
2

Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case.3

ISSUES

The issues are: (1) whether OWCP properly determined that appellant received an 

overpayment of compensation in the amount of $966.19 because she was overpaid for mileage 

reimbursements for the period May 26, 2015 through January 11, 2016; and (2) whether OWCP 

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

recovery of the overpayment.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances of the case 

as set forth in the Board’s prior decisions and orders are incorporated herein by reference. The 

relevant facts are as follows.

On July 31, 1992 appellant, then a 40-year-old food service worker, filed an occupational 

disease claim (Form CA-2) alleging that she sustained an emotional condition in the performance 

of duty causally related to factors of her federal employment. After extensive development,

OWCP accepted the claim for dysthymic disorder on May 30, 1997. Appellant elected to receive 

retirement benefits from the Office of Personnel Management (OPM) in lieu of FECA 

compensation and her annuity commenced on March 15, 2008.

By decision dated December 7, 2016, a hearing representative with OWCP’s Branch of 

Hearings and Review finalized a preliminary overpayment determination that appellant received

an overpayment of compensation in the amount of $3,168.84 because appellant had received 

improperreimbursement payments related to travel to medical appointments from January 6, 2014 

through December 7, 2015 due to receiving duplicate payments or payments based on exaggerated 

mileage. He also found her at fault in the creation of the overpayment, thereby precluding waiver 

of recovery of the overpayment.

Appellant filed an appeal with the Board and, by decision dated December 27, 2017,5the 

Board set aside the December 17, 2016 OWCP decision, finding that the case was not in posture 

for decision because the record did not contain sufficient documentation to verify that she had 

submitted duplicate requests for reimbursement and/or requested that she be paid for incorrect 

2

5 U.S.C. § 8101 et seq. 

3 The Board notes that,following the January 17, 2020 decision, OWCP received additional evidence. Appellant 

also 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. 

4 Docket No. 95-0332 (issued April 3, 1997); Docket No. 17-1041 (issued December 27, 2017); Docket No. 

19-0261 (issued July 3, 2019), petition for recon. denied, Docket No. 19-0261 (issued December 3, 2020).

5

Id.
3

mileage. The Board remanded the case for reconstruction of the record, to include any travel 

reimbursement forms (Form OWCP-957) appellant had submitted for claimed periods.

OWCP subsequently placed additional documentation into the record, including OWCP957 forms, all signed by appellant on May 29, 2015, and a listing of the Form OWCP-957 receipt 

dates and dates paid. A chronological pay history from January 6, 2014 through January 11, 2016 

noted duplicate payments. Remittance vouchers for July 2 and December 24, 2015 described 

payments for travel reimbursement of $1,200.23 and $2,260.80, respectively. Copies of cancelled 

checks in those amounts are found in the record, as well as cancelled checks dated January 28 and 

March 3, 2016 for $929.88 and $559.38,respectively.

By decision dated October 26, 2018, an OWCP hearing representative finalized a

March 13, 2018 preliminary overpayment determination that appellant received an overpayment 

of compensation in the amount of $3,205.14. She found that the overpayment occurred because 

appellant was overpaid for mileage reimbursement related to travel to medical appointments from

January 6, 2014 through December 7, 2015. She further found appellant at fault in the creation of 

the overpayment because she knowingly claimed and accepted compensation to which she was not 

entitled.

Appellant timely filed an appeal with the Board and, by decision dated July 3, 2019,6the 

Board found thatshe received overpayment of compensation in the amount of $2,238.95 for the 

period January 6, 2014 through May 26, 2015 because she received reimbursement for duplicate 

and excessive travel reimbursement requests.7 The Board further found, however, that the case 

was not in posture for decision regarding whether an overpayment of compensation for the period 

June 1, 2015 through January 11, 2016 was created. It remanded the case to OWCP to obtain the 

completed OWCP-957 forms for that period.

Subsequent to the Board’s decision, OWCP received additional OWCP-957 forms. These 

were signed by appellant on May 29 and December 1, 2015 and were for travel between her home 

in Vallejo, California, and the office of Dr. Brandes in Napa, California. For 21 days covering the 

period June 1 through December 7, 2015, appellant claimed 77 miles of travel. For the period 

May 26, 2015 through January 11, 2016, she filed forms for 25 days, claiming 38.8 miles. On 

these forms, appellant certified with her signature that the information she provided in connection 

with the travel refund request was true and correct, and that she was aware that any 

misrepresentation to obtain reimbursement was subject to penalties. Each of the forms submitted 

was also signed by Dr. Brandes.

Additional evidence received included a listing of receipt dates for OWCP-957 forms and 

dates paid. A chronological pay history from January 6, 2014 through January 11, 2016 noted 

duplicate payments. Remittance vouchers for July 2 and December 24, 2015 described payments 

for travel reimbursement of $1,200.23 and $2,260.80, respectively. Copies of cancelled checks in 

those amounts are found in the record, as well as cancelled checks dated January 28 and March 3, 

6

Supra note 4.

7 The Board, inter alia, affirmed OWCP’s finding that appellant received an overpayment of compensation in the 

amount of $22.43 on May26, 2015.
4

2016 for $929.88 and $559.38,respectively. All cancelled checks were endorsed by appellant. 

An overpayment worksheet indicates that on January 28, 2016 she was paid $44.28 for 77 miles 

of travel on 21 separate occasions when she should have been paid $21.85 for each 38-mile trip, 

which yielded a daily overpayment of $22.43, or a total overpayment of $471.03 for this period. 

A second worksheet indicates that on March 3, 2016 appellant received duplicate daily payments 

of $22.43 for 22 days for the period May 26 through December 7, 2015, and was also overpaid for 

claimed excessive mileage on OWCP-957 forms of $0.58 for December 14 and 21, 2015, and 

$0.54 for January 11, 2016, which yielded an overpayment of $495.16 for the period May 26, 2015 

through January 11, 2016.

On August 19, 2019 OWCP issued a preliminary overpayment determination that an 

overpayment of compensation in the amount of $966.19 had occurred because appellant was paid 

for duplicative mileage reimbursement requests that she submitted for specific dates during the 

period May 26, 2015 through January 11, 2016. It found her at fault in the creation of the 

overpayment because she knowingly claimed and accepted compensation to which she was not 

entitled. The preliminary overpayment decision listed the specific dates in which duplicate or 

triplicate claims and/or excessive mileage claims were made. A listing of receipt dates for OWCP957 forms and dates paid was attached, along with an overpayment action request and overpayment 

recovery questionnaire (OWCP-20). OWCP afforded appellant 30 days to respond.

In correspondence postmarked September 7, 2019, appellant requested a hearing before a 

representative of OWCP’s Branch of Hearings and Review. She contested the fact and amount of 

the overpayment, as well as the finding of fault.

During the hearing held on December 4, 2019, appellant disputed the fact of the 

overpayment. The hearing representative advised her to complete an overpayment recovery 

questionnaire and held the record open for 30 days.

On December 16, 2019 appellant submitted an overpayment recovery questionnaire in 

which she listed monthly income of $1,927.00 and monthly expenses of $1,975.33. No additional 

evidence was received.

By decision dated January 17, 2020, OWCP’s hearing representative finalized the 

August 19, 2019 preliminary overpayment determination. He identified the amount of the 

overpayment for the period May 26, 2015 through January 11, 2016 as $966.19. The hearing 

representative found that the overpayment occurred for the period May 26, 2015 through 

January 11, 2016 because appellant was overpaid for mileage reimbursement related to travel to 

medical appointments, noting that she claimed the same dates on multiple forms and exaggerated 

the distance that she traveled. He also found her at fault in the creation of the overpayment because 

she knew or should have known that an overpayment would be created by submitting multiple 

requests for travel reimbursement on the same dates and by submitting requests for incorrect 

distances travelled. The hearing representative found that, therefore, the overpayment was not 

subject to waiver. He noted that appellant did not submit financial documentation to support her 

claimed monthly income and expenses, and found that the overpayment should be recovered in 

full.
5

LEGAL PRECEDENT -- ISSUE 1

Section 8103 of FECA provides that the United States shall furnish to an employee who is

injured while in the performance of duty, the services, appliances, and supplies prescribed or 

recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce 

the degree of the period of disability, or aid in lessening the amount of monthly compensation.8 

With respect to travel expenses for medical treatment, OWCP’s regulations provide: 

“(a) The employee is entitled to reimbursement of reasonable and necessary 

expenses, including transportation needed to obtain authorized medical services, 

appliances or supplies. To determine what a reasonable distance to travel is, OWCP 

will consider the availability of services, the employee’s condition, and the means 

of transportation. Generally, a roundtrip distance of up to 100 miles is considered 

a reasonable distance to travel. Travel taken by the shortest route, and if practical, 

by public conveyance. If the medical evidence shows that the employee is unable 

to use these means of transportation, OWCP may authorize travel by taxi or special 

conveyance.”

9

In interpreting section 8103(a) of FECA, the Board has recognized that OWCP has broad 

discretion in approving services provided under FECA.10 The only limitation on OWCP’s 

authority is that of reasonableness.11 OWCP may authorize medical treatment, but determine that 

the travel expense incurred for such authorized treatment was unreasonable or unnecessary. 12

ANALYSIS -- ISSUE 1

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

$943.76 during the period May 27, 2015 through January 11, 2016. 

The Board previously found in its July 3, 2019 decision that appellant received an 

overpayment of compensation in the amount of $2,238.95 for the period January 6, 2014 through 

May 26, 2015 because she received reimbursement for duplicate and excessive travel 

reimbursement requests.13 The Board has held that findings made in prior Board decisions are

8

5 U.S.C. § 8103.

9

20 C.F.R. § 10.315(a); S.M.,Docket No. 19-0989 (issued May 20, 2020).

10 G.C., Docket No. 19-0238 (issued June 24, 2019).

11 M.G., Docket No. 19-1791 (issued August13, 2020); B.H., Docket No. 17-0479 (issued March 19, 2019).

12 J.S., Docket No. 19-1246 (issued June 8, 2021).

13 The total overpayment amount included an overpayment of $22.43 forMay26, 2015. 
6

res judicata and cannot be considered absent further review by OWCP under section 8128 of 

FECA.14

On remand, additional evidence was received, including additional OWCP-957 forms in 

which she claimed either duplicate compensation for the same date or claimed excessive mileage. 

By decision dated January 17, 2020, OWCP’s hearing representative finalized the 

August 19, 2019 preliminary overpayment determination, finding that appellant received an 

overpayment of compensation for the period May 26, 2015 through January 11, 2016. 

Pay records for the period May 26, 2015 through January 11, 2016 substantiate that OWCP 

made duplicate or improper payments during this period, and the record also contains cancelled 

checks dated January 28 and March 3, 2016 for $929.88 and $559.38,respectively, which were 

signed by appellant. Accordingly, the Board finds that fact of overpayment has been established.

Overpayment worksheets support that on January 28, 2016 she was overpaid $471.03 for 

21 dates when she claimed excessive mileage, and on March 3, 2016 she was overpaid $493.46 

for 22 dates when she claimed duplicate payments, plus $1.70 when she was paid for incorrect 

mileage for travel on December 14 and 21, 2015 and January 11, 2016. Thus, by adding $471.03, 

$493.46 and $1.70, OWCP properly found an overpayment of compensation in the amount of 

$966.19 for the period May 26, 2015 through January 11, 2016. However, as noted above, the 

overpayment of $22.43 for May 26, 2015 may not be considered in the current appeal as it was 

previously considered in the overpayment affirmed by the Board in its July 3, 2019 decision and 

is therefore res judicata. Subtraction of the $22.43 overpayment created on May 26, 2015 from 

the $966.19 overpayment created during the period May 26, 2015 through January 11, 2016 yields 

a total overpayment for the period May 27, 2015 through January 11, 2016 in the amount $943.76. 

The Board will, therefore, modify OWCP’s January 17, 2020 decision to reflect that appellant 

received an overpayment of compensation in the amount of $943.76 for the period May 27, 2015 

through January 11, 2016.

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA provides that an overpayment in compensation shall be recovered 

by OWCP 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.”

15

 No waiver of payment is possible if appellant is at fault in helping to create 

the overpayment.16

14 C.M., Docket No. 19-1211 (issued August5, 2020); C.D., Docket No. 19-1973 (issued May 21, 2020); M.D.,

Docket No. 20-0007 (issued May 13, 2020).

15 5 U.S.C. § 8129; see R.W., Docket No. 19-0334 (issued August 7, 2020); S.M., Docket No. 18-1525 (issued 

April 12, 2019).

16 See R.W., id.
7

Section 10.433(a) of OWCP’s regulations provides that OWCP:

“[M]ay consider waiving an overpayment only if the individual to whom it was 

made was not at fault in accepting or creating the overpayment. Each recipient of 

compensation benefits is responsible for taking all reasonable measures to ensure 

that payments he or she receives from OWCP are proper. The recipient must show 

good faith and exercise a high degree of care in reporting events which may affect 

entitlement to or the amount of benefits. A recipient who has done any of the 

following will be found to be at fault in creating an overpayment: 

(1) Made an incorrect statement as to a material fact which he or she knew 

or should have known to be incorrect; or 

(2) Failed to provide information which he or she knew or should have 

known to be material; or 

(3) Accepted a payment which he or she knew or should have known to be 

incorrect. (This provision applies only to the overpaid individual).”

17

To determine if an individual was at fault with respect to the creation of an overpayment, 

OWCP examines 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.18

ANALYSIS -- ISSUE 2

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

overpayment in the amount of $943.76 for the period May 27, 2015 through January 11, 2016, 

thereby precluding waiver of recovery of the overpayment.

The Board finds that appellant made an incorrect statement as to a material fact, which she 

knew or should have known to be incorrect. The record establishes that on May 29 and 

December 1, 2015 she signed OWCP-957 forms for reimbursement for round trip travel from her 

home to Dr. Brandes’ office for the period May 27, 2015 through January 11, 2016. On these 

forms appellant claimed duplicate reimbursement and/or claimed excessive mileage. 

Each form signed by appellant included a certification clause in which, by signing, she 

acknowledged that the information given by her and in connection with the form was true and 

correct to the best of her knowledge, and noted that any person who knowingly made a false 

statement or misrepresentation to obtain reimbursement to OWCP was subject to civil penalties 

and/or criminal prosecution. 

17 20 C.F.R. § 10.433(a); see R.W., id.; C.Y., Docket No. 18-0263 (issued September 14, 2018); see also 20 C.F.R. 

§ 10.430.

18 Id. at § 10.433(b); see M.J., Docket No. 19-1665 (issued July 29, 2020).
8

The record supports that appellant signed each of these forms with duplicate and/or 

excessive mileage requests on the same date. Under the circumstances of this case, the Board finds 

that she misrepresented a material fact in order to obtain reimbursement from OWCP. Appellant 

is, therefore, at fault in the creation of the overpayment and precluded from waiver of recovery of 

the overpayment.19

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.20 As appellant is not receiving wage-loss compensation, the Board does not have 

jurisdiction with respect to the recovery of the overpayment under the Debt Collection Act. 21

CONCLUSION

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

$943.76 during the period May 27, 2015 through January 11, 2016. The Board further finds that 

OWCP properly found her at fault in the creation of the overpayment in the amount of $943.76 for 

the period May 27, 2015 through January 11, 2016, thereby precluding waiver of recovery of the 

overpayment.

19 See E.K., Docket No. 18-0599 (issued February 26, 2020); W.A., Docket No. 14-350 (issued October 28, 2014).

20 E.F., Docket No. 18-1320 (issued March 13, 2019).

21 Id.
9

ORDER

IT IS HEREBY ORDERED THAT the January 17, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed, as modified.

Issued: December 3, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board