United States Department of Labor

Employees’ Compensation Appeals Board

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C.H., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

Blythe, CA, Employer

__________________________________________

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Docket No. 19-1470

Issued: January 24, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 28, 2019 appellant filed a timely appeal from a June 6, 2019 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 to 

consider the merits of this case.2

ISSUES

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

amount of $1,792.94 for the period March 5 through 30, 2019; and (2) whether OWCP properly 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the June 6, 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

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

of the overpayment.

FACTUAL HISTORY

On August 30, 2018 appellant, then a 28-year-old border patrol agent, filed a traumatic 

injury claim (Form CA-1) alleging that, on August 22, 2018, he sustained left shoulder strain when 

participating in physical training while in the performance of duty. OWCP accepted the claim for 

left shoulder superior glenoid labrum lesion and left shoulder bicipital tendinitis. Appellant 

received continuation of pay from September 1 through October 15, 2018. OWCP paid wage-loss 

compensation for temporary total disability beginning October 16, 2018, and it placed him on the 

periodic compensation rolls effective November 11, 2018.

By letter dated November 13, 2018, OWCP advised appellant that he had been placed on 

the periodic rolls, outlined his entitlement to compensation benefits, and advised him of his 

responsibility to return to work in connection with the accepted injury. In an attached EN1049

form, OWCP provided:

“To 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 

two 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.)

Effective March 5, 2019, appellant resumed full-time, regular-duty work. On or about 

March 27, 2019 OWCP terminated appellant’s wage-loss compensation for temporary total 

disability. However, on March 30, 2019 it disbursed payment via direct deposit in the amount of 

$1,930.86 (net) for the period March 3 through 30, 2019. As appellant was only entitled to 

compensation for two days ($137.92) of the 28-day period, OWCP calculated that he had been 

overpaid $1,792.94 for the period March 5 through 30, 2019.

In an April 16, 2019 preliminary overpayment determination, OWCP advised appellant 

that he had been overpaid $1,792.94 for the period March 5 through 30, 2019 because he returned 

to full-duty work on March 5, 2019, but continued to receive compensation for temporary total 

disability through March 30, 2019. It also determined that appellant was at fault in the creation of 

the overpayment because he had accepted payment that he knew or reasonably should have known

to be incorrect. OWCP informed appellant that he had the right to submit evidence or argument if 

he disagreed with its findings. It also informed him that he had a right to a prerecoupment hearing 

before an OWCP hearing representative. Additionally, OWCP instructed appellant to complete 

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

financial documentation. 
3

By decision dated June 6, 2019, OWCP finalized its preliminary determination that 

appellant received an overpayment of compensation in the amount of $1,792.94 for the period 

March 5 through 30, 2019. It determined that appellant was at fault in the creation of the 

overpayment, and therefore, he was not entitled to waiver of recovery of the overpayment. OWCP 

required recovery in full 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 duty.3

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

if he or she has been paid a lump sum in commutation of installment payments until the expiration 

of the period during which the installment payments would have continued, the employee may not 

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

instances.4 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.5 A 

claimant is not entitled to receive temporary total disability (TTD) benefits and actual earnings for 

the same time 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 for TTD.7

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $1,792.94 for the period March 5 through 30, 2019.

On March 5, 2019 appellant returned to full-time, regular-duty work. However, OWCP 

continued to pay him wage-loss compensation for total disability through March 30, 2019. As 

noted above, appellant was not entitled to receive compensation for total disability after he returned 

to work.8 His March 30, 2019 direct deposit payment of $1,930.86 (net) covered the 28-day period 

from March 3 through 30, 2019. Because he was only entitled to two days of compensation 

 

3 5 U.S.C. § 8102(a).

4

Id. at § 8116(a).

5 20 C.F.R. § 10.500(a).

6 See K.K., Docket No. 19-0978 (issued October 21, 2019); C.L., Docket No. 19-0242 (issued August 5, 2019); 

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).

7 K.K., id.; 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).

8 See supra notes 4-7.
4

($137.92) during that 28-day period,9 OWCP correctly calculated that appellant was overpaid

$1,792.94 for the period March 5 through 30, 2019.10 Appellant has not contested the fact or 

amount of the overpayment. The Board thus finds that he received an overpayment of 

compensation in the amount of $1,792.94 for the period March 5 through 30, 2019.

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 FECA or would be against equity and good conscience.11 

A claimant who is at fault in the creation of the overpayment is not entitled to waiver.12 On the 

issue of fault, 20 C.F.R. § 10.433(a) provides that an individual will be found at fault if he or she 

has done any of the following: (1) made an incorrect statement as to a material fact which he or 

she knew or should have known to be incorrect; (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 was incorrect.

The Board has held that an employee who receives 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.13 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.14 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.15

ANALYSIS -- ISSUE 2

The Board finds that appellant was not at fault with regard to the overpayment.

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

to work on March 5, 2019. It paid him compensation for the period March 5 through 30, 2019. 

There is no documentation or other evidence to demonstrate that appellant had clear knowledge at 

 

9 $1,930.86 ÷ 28 = $68.96 x 2 = $137.92.

10 $1,930.86 - $137.92 = $1,792.94

11 5 U.S.C. § 8129(b).

12 See B.R., Docket No. 18-0339 (issued January 24, 2019); K.E., Docket No. 18-0687 (issued October 25, 2018); 

Gregg B. Manston, 45 ECAB 344, 354 (1994); Robert W. O Brien, 36 ECAB 541, 547 (1985).

13 See Tammy Craven, 57 ECAB 689 (2006); see also A.B., Docket No. 18-0922 (issued January 3, 2019).

14 See Tammy Craven, id.; see also S.D., Docket No. 17-0309 (issued August 7, 2018).

15 See D.B., Docket No. 15-0258 (issued February 1, 2016); W.P., 59 ECAB 514 (2008).
5

the time the bank received the March 30, 2019 direct deposit that the payment was incorrect.16 

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

amount of $1,792.94 from March 5 through 30, 2019.

As such, the Board will set aside the June 6, 2019 decision regarding the issue of fault, and 

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

overpayment.

CONCLUSION

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

of compensation in the amount of $1,792.94 for the period March 5 through 30, 2019. The Board 

further finds that appellant was without fault in the creation of the overpayment. 

ORDER

IT IS HEREBY ORDERED THAT the June 6, 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 action consistent with this decision of the Board.

Issued: January 24, 2020

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

16 See C.Y., Docket No. 18-0263 (issued September 14, 2018); see also M.M., Docket No. 15-0265 (issued May 27, 

2015); Danny E. Haley, 56 ECAB 393 (2005).