United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.H., Appellant

and

U.S. POSTAL SERVICE, PROCESSING &

DISTRIBUTION CENTER, Baltimore, MD, 

Employer

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Docket No. 18-1452

Issued: March 25, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 24, 2018 appellant, through counsel, filed a timely appeal from a June 29, 2018

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.

3

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq.

3 The Board notes that, following the June 29, 2018 decision, OWCP received additional evidence and that appellant 

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. 
2

ISSUES

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

amount of $2,722.20 for the period November 7 through December 9, 2017 because OWCP paid 

her disability compensation after she returned to full-time work; 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 September 15, 2016 appellant, then a 55-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that she injured her right elbow on September 7, 2016 when she 

tripped over a mat while in the performance of duty. On December 19, 2016 OWCP accepted 

contusion of the right elbow. On March 31, 2017 it expanded the acceptance of her claim to 

include lateral epicondylitis of the right elbow and traumatic rupture of the right radial collateral 

ligament. Appellant stopped work on June 7, 2017, and Dr. Lorne Weeks, a Board-certified 

orthopedic surgeon, performed right elbow surgery that day. OWCP paid appellant compensation 

on the supplemental rolls commencing June 7, 2017 and on the periodic rolls commencing 

August 20, 2017.

On July 26, 2017 OWCP acknowledged receipt of appellant’s direct deposit sign up form 

dated July 25, 2017. 

By letter dated September 12, 2017, OWCP advised appellant that it had placed her on the 

periodic rolls and notified her of her continuing compensation payments and her responsibility to 

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

injury. An attached EN1049 form advised: 

“To minimize the possibility of an overpayment of compensation, NOTIFY THIS 

OFFICE IMMEDIATELY WHEN YOU GO BACK TO WORK. 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. Each 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 already advised OWCP 

that you are working.” (Emphasis in the original.) 

In a December 6, 2017 e-mail, an OWCP medical management nurse reported that 

appellant had returned to limited duty on November 7, 2017. In a compensation termination 

worksheet dated December 7, 2017, OWCP noted that appellant’s compensation should have been 

terminated on November 7, 2017 when she returned to limited-duty work.

On May 11, 2018 OWCP notified appellant of its preliminary overpayment determination 

that an overpayment of compensation in the amount of $2,722.20 had been created for the period 

November 7 through December 9, 2017 because she received compensation for total disability 

after she returned to full-time work on November 7, 2017. It provided an overpayment action 

request form and an overpayment recovery questionnaire (Form OWCP-20). OWCP explained its 

calculation of the overpayment and allotted 30 days for her to respond. The record includes an 
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overpayment memorandum explaining its calculations, which OWCP incorporated into its 

May 11, 2018 preliminary overpayment determination. 

Appellant forwarded OWCP a partially completed overpayment recovery questionnaire. 

She asserted that she thought the compensation was for backpay and disputed the fault finding. 

By decision dated June 29, 2018, OWCP finalized its preliminary overpayment 

determination that appellant received an overpayment of compensation in the amount of $2,722.20

for the period November 7 through December 9, 2017 for which she was at fault because she 

continued to receive FECA compensation after her return to full-time work on November 7, 2017. 

It noted that she had not informed OWCP that she continued to receive compensation after her 

return to work and requested that she forward a check in the amount of $2,722.20. 

LEGAL PRECEDENT -- ISSUE 1

Section 8102 of FECA4 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.5

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 

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

limited circumstances.6 OWCP’s regulations provide that compensation for wage loss due to 

disability is available only for 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 An 

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

compensation.8 

OWCP’s procedures provide that, once an overpayment was identified, OWCP was 

responsible for determining whether the claimant was at fault or not at fault, in issuing its 

preliminary finding, and unless a hearing was requested, OWCP was responsible for issuing a final 

decision. These procedures noted that, if the claimant was determined to be at fault, a preliminary 

overpayment determination must be released (along with a Form OWCP-20) within 30 days of the 

date the overpayment was identified.9 Both the reason that the overpayment occurred and the 

reason for the finding of fault must be clearly provided. A preliminary overpayment determination 

informs the claimant of the right to submit evidence and the right to a prerecoupment hearing on 

 

4 Supra note 2.

5

Id. at § 8102. 

6

Id. at § 8116(a). 

7 20 C.F.R. § 10.500(a). 

8 Danny E. Haley, 56 ECAB 393 (2005); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial 

Overpayment Actions, Chapter 6.200.2(a) (May 2004).

9 Federal (FECA) Procedure Manual, id. at Chapter 6.200.4(a) (May 2004).
4

the issue of: (a) fact and amount of overpayment; (b) fault; and (c) waiver of recovery of the 

overpayment. Along with the preliminary overpayment determination, OWCP was to provide a 

clearly written statement explaining how the overpayment was created.10

ANALYSIS -- ISSUE 1

The Board finds that OWCP improperly determined that appellant received an 

overpayment of compensation in the amount of $2,722.20 for the period November 7 through

December 9, 2017.

As noted, OWCP’s procedures provide that an overpayment of compensation is created 

when a claimant receives paid leave or wages for work, but continues to receive wage-loss 

compensation for temporary total disability.11 

On December 6, 2017 OWCP was first placed on notice that appellant had returned to work 

on December 6, 2017 when a medical management nurse advised OWCP by e-mail that appellant 

had returned to work on November 7, 2017. As such, on December 6, 2017, an overpayment was 

identified. It was not until May 11, 2018, however, that OWCP issued a preliminary overpayment 

determination finding an overpayment in the amount of $2,722.20 had been created for the period 

November 7 through December 9, 2017. 

By decision dated June 29, 2018, OWCP’s hearing representative finalized the preliminary 

overpayment determination and found appellant was at fault in the creation of the $2,722.20 

overpayment. 

The Board finds that OWCP failed to follow its procedures in issuing the June 29, 2018, 

overpayment decision. As noted, OWCP’s procedures provide that a preliminary overpayment 

determination must be released along with a Form OWCP-20 within 30 days of the date the 

overpayment is identified.12 In this case, OWCP first identified the overpayment of compensation 

on December 6, 2017, but it did not, however, issue a preliminary overpayment determination

regarding the overpayment until May 11, 2018, more than 30 days later.

The Board thus finds that OWCP failed to follow its established procedures in determining 

that appellant received an overpayment of compensation in the amount of $2,722.20 had been 

created for the period November 7 through December 9, 2017.

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CONCLUSION

The Board finds that OWCP failed to follow its established procedures in determining that 

appellant received an overpayment of compensation in the amount of $2,722.20 for the period 

November 7 through December 9, 2017.

 

10 Id. at § 6.200.4(a)(2).

11 Id.

12 See supra note 9. 

13 In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.
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ORDER

IT IS HEREBY ORDERED THAT the June 29, 2018 decision of the Office of Workers’

Compensation Programs is reversed. 

Issued: March 25, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board