United States Department of Labor

Employees’ Compensation Appeals Board

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N.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Arlington, VA, Employer

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Docket No. 19-0872

Issued: September 12, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 18, 2019 appellant filed a timely appeal from a March 13, 2019 merit decision

of the Office of Workers’ Compensation Programs (OWCP). 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.

1

ISSUES

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

overpayment of compensation in the amount of $2,435.95 for the period December 13, 2018 

through January 5, 2019 for which he was without fault; and (2) whether it properly denied waiver 

of recovery of the overpayment.

 

1 The Board notes that, following the March 13, 2019 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

FACTUAL HISTORY

On February 5, 2011 appellant, then a 58-year-old sales and services associate (a.k.a., SSA 

clerk), filed a traumatic injury claim (Form CA-1) when he was reportedly struck on the left 

drivers’ side of his vehicle during a motor vehicle collision while in the performance of duty on 

that date. He allegedly sustained a soreness and hurting in his lower back, tailbone, and entire left 

side of his body. Appellant stopped work on that date and received continuation of pay beginning 

February 6, 2011. On the reverse side of the claim form the employing establishment indicated 

that appellant was in the performance of duty when injured, that he had received medical treatment, 

and that he had not yet returned to work. On March 30, 2011 OWCP accepted his claim for left 

shoulder rotator cuff sprain. It expanded acceptance of his claim to include lumbar sprain, lumbar 

spondylosis without myelopathy, thoracic and lumbosacral neuritis/radiculitis, and a herniated disc 

at L4-S1.

OWCP paid appellant wage-loss compensation benefits for temporary total disability on 

the supplemental rolls, beginning March 23, 2011, and on the periodic rolls beginning 

June 5, 2011.

On June 3, 2015 appellant underwent OWCP-approved lumbar surgery.2

Appellant returned to work in a part-time, limited-duty capacity for four hours per day on 

December 13, 2018.3 Appellant retired from federal employment, effective December 24, 2018. 

He continued to receive wage-loss compensation benefits for total disability through 

January 5, 2019.

On January 30, 2019 OWCP advised appellant of its preliminary determination that he had 

received an overpayment of wage-loss compensation in the amount of $2,435.95 because he 

received total disability compensation for the period December 13, 2018 through January 5, 2019 

after he had returned to part-time, limited-duty work. It noted that for the period December 9, 

2018 to January 5, 2019 appellant received $2,841.94 in wage-loss compensation, but he was only 

entitled to receive $405.99, resulting in an overpayment of $2,435.95. Included in the record was 

a copy of OWCP’s manual adjustment form, which indicated that, during the period December 9, 

2018 to January 5, 2019, appellant received compensation in the amount of $2,841.94. It also 

noted that, for the period December 9 to 12, 2018, appellant should have received $405.99, 

resulting in a net difference of $2,435.95. OWCP also made a preliminary finding that appellant 

was without fault in creation of the overpayment of compensation as he was not aware or could 

not have reasonably known that he continued to receive wage-loss compensation for total disability 

after he had returned to part-time limited duty. It requested that he complete an enclosed 

overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial 

documents. Additionally, OWCP notified appellant that, he could request a prerecoupment 

telephone conference within 30 days of the date of the letter.

 

2 A June 3, 2015 operative report indicated that appellant underwent left L5-S1 foraminotomy and discectomy and 

left L4-L5 discectomy.

3

In a report dated September 7, 2018, Dr. Robert Squillante, a Board-certified orthopedic surgeon, indicated that 

appellant could return to work with restrictions of lifting up to 10 pounds and sitting, walking, or standing up to 30 

minutes continuously.
3

OWCP did not receive a completed Form OWCP-20 or any additional documents 

regarding appellant’s preliminary overpayment determination.

By decision dated March 13, 2019, OWCP finalized the preliminary determination that 

appellant received an overpayment of compensation in the amount of $2,435.95 for the period 

December 13, 2018 to January 5, 2019 because he returned to part-time, limited-duty work on 

December 13, 2018, but continued to receive wage-loss compensation for total disability until 

January 5, 2019. It continued to find that appellant was without fault in the creation of the 

overpayment, but denied waiver of recovery of the overpayment because he did not submit any 

evidence in response to the January 30, 2019 preliminary determination to support that recovery 

of the overpayment should be waived. OWCP requested payment in full within 30 days from the 

date of the decision.

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.4 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.5

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 may not 

receive salary, pay, or remuneration of any type from the United States, except in limited 

circumstances.6 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.7 A claimant is not entitled to receive temporary total disability (TTD) benefits and actual 

earnings for the same time period.8 OWCP procedures provide that an overpayment of 

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

compensation for TTD.9

 

4 5 U.S.C. § 8102(a).

5

Id. at § 8129(a).

6

Id. at § 8116(a).

7 20 C.F.R. § 10.500.

8 See K.E., Docket No. 18-0687 (issued October 25, 2018); M.S., Docket No. 16-0289 (issued April 21, 2016); L.S., 

59 ECAB 350, 352-53 (2008).

9 K.E., id.; B.H., Docket No. 09-0292 (issued September 1, 2009); Federal (FECA) Procedure Manual, Part 6 --

Debt Management, Initial Overpayment Action, Chapter 6.200.2(a) (May 2004).
4

ANALYSIS -- ISSUE 1

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

OWCP found that appellant received an overpayment of compensation because he received 

wage-loss compensation for total disability from December 13, 2018 through January 5, 2019 after

he returned to part-time, limited duty on December 13, 2018. The evidence of record establishes 

that appellant returned to part-time, limited-duty work for the employing establishment on 

December 13, 2018, but continued to receive TTD compensation through January 5, 2019. As 

noted above, a claimant is not entitled to receive compensation for total disability during a period 

in which he or she had actual earnings.10 Therefore, an overpayment of compensation was created 

in this case.11

The Board further finds, however, that this case is not in posture for decision with regard 

to the amount of overpayment. In its January 30, 2019 preliminary overpayment determination, 

OWCP found an overpayment of compensation in the amount of $2,435.95 for which appellant 

was without fault because he returned to part-time, limited-duty work on December 13, 2018, but 

continued to receive TTD wage-loss compensation until January 5, 2019. It noted that, for the 

period December 9, 2018 through January 5, 2019, appellant received $2,841.94 in wage-loss 

compensation. OWCP also indicated that, for the period December 9 through 12, 2018, appellant 

should have received $405.99 in wage-loss compensation. It calculated this amount by dividing 

the gross amount that appellant had received from December 9, 2018 through January 5, 2019 of 

$3,046.00 by 28 days, which equaled $108.79 per day ($3,046 ÷28 = $108.785). OWCP then 

multiplied the daily rate by four days, which equaled $435.14. After subtracting appellant’s health 

benefits, it determined that appellant should have received $405.99 from December 9 to 12, 2018. 

OWCP subtracted $405.99 from $2,841.94 and calculated that appellant received an overpayment 

of compensation in the amount of $2,435.95.

OWCP did not, however, calculate the amount of compensation that appellant should have 

received for the remaining period December 12, 2018 to January 5, 2019. It is unclear from the 

record why OWCP multiplied appellant’s daily rate by 4 days, from December 9 to 12, 2018, when 

he was overpaid for 24 days from December 12, 2018 to January 5, 2019. Furthermore, OWCP 

considered the amount of wage-loss compensation that appellant had received from December 9, 

2018 to January 5, 2019 even though he did not stop work until December 13, 2018. Due to the 

lack of financial information in the record, the Board is unable to adequately review this aspect of 

the case. A claimant is entitled to an overpayment decision that clearly explains how the amount 

was calculated.12 The Board finds that, as the overpayment decision in this case does not provide 

such an explanation, the amount of overpayment has not been established.

On remand OWCP shall determine the exact amount of overpayment of compensation,

which occurred when it continued to pay appellant wage-loss compensation for TTD from 

 

10 Supra notes 8 & 9.

11 See J.L., Docket No. 18-1266 (issued February 15, 2019).

12 See C.G., Docket No. 18-1655 (issued June 14, 2019); A.J., Docket No. 18-1152 (issued April 1, 2019); see also 

O.R., 59 ECAB 432 (2008) (the Board determined that with respect to overpayment decisions, OWCP must provide 

clear reasoning showing how the overpayment was calculated).
5

December 13, 2018 to January 5, 2019 even though he had returned to part-time, limited-duty 

work on December 13, 2018. It should then issue a new preliminary overpayment determination, 

with an appropriate overpayment action request form, an overpayment recovery questionnaire, and 

instructions for him to provide supporting financial information. After OWCP has further 

developed the case record, a de novo decision shall be issued.13

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the March 13, 2019 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 opinion.

Issued: September 12, 2019

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

13 As this case is not in posture for decision regarding the amount of overpayment, the issue of waiver is moot. See 

S.F., Docket No. 18-0003 (issued April 19, 2018); see also R.L., Docket No. 11-1251 (issued January 27, 2012).