United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.P., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

CROSSTOWN ANNEX, Roswell, GA, Employer

__________________________________________

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Docket No. 19-1151

Issued: March 18, 2020

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 25, 2019 appellant filed a timely appeal from a January 18, 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 over 

the merits of this case.2

ISSUES

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

amount of $9,278.61 because she received total disability compensation for the period July 28 

through December 8, 2018 after she had returned to full-time modified work; and (2) whether 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the January 18, 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

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

waiver of recovery of the overpayment.

FACTUAL HISTORY

On April 15, 2017 appellant, then a 43-year-old carrier technician, filed a traumatic injury 

claim (Form CA-7) alleging that on April 14, 2017 she sustained a left knee injury3 when she was 

involved in a motor vehicle accident while in the performance of duty. She stopped work on 

April 14, 2017, returned to work on April 15, 2017, and stopped work again on April 20, 2017. 

OWCP accepted the claim for left knee sprain and left knee internal derangement. It paid appellant 

wage-loss compensation on the supplemental rolls, as of June 4, 2017, and on the periodic rolls,

as of November 12, 2017. 

In a letter dated December 11, 2017, OWCP outlined appellant’s entitlement to 

compensation benefits. An attached Form EN1049 instructed that, if she worked during any 

portion of the covered period, and compensation payments were received via either paper check 

or for payments sent by electronic funds transfer (EFT), she was to return the payment to OWCP 

even if she had already advised OWCP that she was working. OWCP noted that appellant was 

expected to monitor her EFT deposits carefully, at least every two weeks. 

In a duty status report (Form CA-17) dated July 24, 2018, Dr. Victor Osisanyo, a Boardcertified physiatrist, released appellant to full-time work with restrictions effective July 26, 2018. 

In a report of work status (Form CA-3) dated December 7, 2018, the employing 

establishment advised OWCP that appellant had returned to limited-duty work on July 28, 2018. 

By letter dated December 10, 2018, OWCP advised appellant of its preliminary 

determination that she had received an overpayment of compensation in the amount of $9,278.61 

because she received total disability compensation for the period July 28 through December 8, 

2018 after she had returned to full-time modified work. It also made a preliminary finding that 

she was at fault in the creation of the overpayment because she had accepted payments that she 

knew, or reasonably should have known, to be incorrect. OWCP noted that appellant received a 

net amount of $1,523.45 for the period July 28 through August 18, 2018; during the period 

August 19 through November 10, 2018, she received a net amount of $5,816.82; and during the 

period November 11 through December 8, 2018, appellant received a net amount of $1,938.34. 

Therefore, because appellant had returned to full-time modified-duty employment she was 

overpaid in the amount of $9,278.61. OWCP advised her that she could submit evidence 

challenging the fact, amount, or finding of fault, and request waiver of recovery of the 

overpayment. It requested that she complete an enclosed overpayment recovery questionnaire 

(Form OWCP-20) and submit supporting financial documents. Additionally, OWCP notified 

appellant that, within 30 days of the date of the letter, she could request a telephone conference, a 

final decision based on the written evidence, or a prerecoupment hearing. Appellant did not 

respond.

 

3 Appellant noted on the Form CA-1 that the claimed injury was a right knee contusion. The medical evidence of 

record reveals, however, that the injury involved her left knee, not her right. 
3

On December 19, 2018 OWCP received a Time Analysis Form (Form CA-7a) in which 

appellant detailed hours of leave without pay taken from August 4, 2018.

4

By decision dated January 18, 2019, OWCP finalized the preliminary determination of a 

$9,278.61 overpayment of compensation for the period July 28 through December 8, 2018.

5

 It 

determined that appellant was at fault in the creation of the overpayment and; therefore, she 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 his or her duty.6 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.7

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

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

in limited specified instances.8 OWCP’s procedures provide that an overpayment of compensation 

is created when a claimant returns to work, but continues to receive wage-loss compensation.9

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $9,278.61 for the period July 28 through December 8, 2018.

The evidence of record established that appellant returned to full-time modified work at 

the employing establishment on July 28, 2018. However, appellant continued to receive wage-

 

4

In a letter dated January 9, 2019, OWCP acknowledged receipt of appellant’s claim for wage-loss compensation 

for the period August 4 to November 3, 2018. It informed her that the claim could not be processed as she had 

submitted the forms directly to OWCP and the form had not been completed by the employing establishment. It

advised appellant to resubmit her claim for compensation through her employing establishment, which could then be 

submitted to OWCP. 

5 OWCP identified the period of the overpayment as July 28 to August 18, 2018, but this appears to be a 

typographical error as OWCP’s calculation of the overpayment amount includes appellant’s compensation payments

through December 8, 2018. 

6 5 U.S.C. § 8102(a).

7

Id. at § 8129(a).

8

Id. at § 8116(a).

9 S.H., Docket No. 19-0509 (issued August 23, 2019); K.E., Docket No. 18-0687 (issued October 25, 2018); B.H.,

Docket No. 09-0292 (issued September 1, 2009); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, 

Identifying and Calculating an Overpayment, Chapter 6.200.1(a) (September 2018).
4

loss compensation for total disability through December 8, 2018. As noted above, appellant is not 

entitled to receive compensation for total disability after her return to work.

10

 Therefore, an 

overpayment of compensation was created in this case.

With regard to the amount of overpayment, the Board finds that OWCP properly calculated 

appellant’s compensation paid for the period July 28 through December 8, 2018.11 The record 

contains no evidence contradicting fact or amount of the overpayment. Thus, the Board finds that 

appellant received an overpayment of compensation in the amount of $9,278.61 for the period 

July 28 through December 8, 2018.12

LEGAL PRECEDENT -- ISSUE 2

5 U.S.C. § 8129(b) provides: “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.”

13

 A claimant who is at fault in the creation of the overpayment is not entitled to 

waiver.14 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.15

With respect to whether an individual is without fault, section 10.433(b) of OWCP’s 

regulations provide that whether or not OWCP determines that an individual was at fault with 

respect to the creation of an overpayment depends on 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.16

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.17 The 

 

10 K.K., Docket No. 19-0978 (issued October 21, 2019); E.V., Docket No. 17-1328 (issued December 11, 2017); 

Federal (FECA) Procedure Manual, id.

11 See supra note 3.

12 Appellant may still file claims for compensation (Form CA-7) through her employing establishment to claim 

compensation for periods of disability. See 20 C.F.R. § 10.102.

13 5 U.S.C. § 8129(b).

14 R.G., Docket No. 18-1251 (issued November 26, 2019) C.Y., Docket No. 18-0263 (issued September 14, 2018).

15 20 C.F.R. § 10.433(a).

16 Id. at § 10.433(b); see also R.G., supra note 14; D.M., Docket No. 17-0983 (issued August 3, 2018).

17 C.H., Docket No. 19-1470 (issued January 24, 2020). See Tammy Craven, 57 ECAB 689 (2006); see also A.B., 

Docket No. 18-0922 (issued January 3, 2019).
5

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.18

ANALYSIS -- ISSUE 2

The Board finds that appellant was not at fault with regard to OWCP’s deposit for the 

period July 28 to August 18, 2018, and that she was at fault in the creation of the overpayment for 

the period August 19 through December 8, 2018.

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

to work on July 28, 2018. The first direct deposit appellant received after her return to work was 

made on August 18, 2018 and included compensation for the period July 22 through 

August 18, 2018. There is no evidence to demonstrate that appellant had clear knowledge at the 

time the bank received the August 18, 2018 direct deposit that the payment was incorrect.19 The 

Board, thus, finds that appellant was without fault in accepting the initial direct deposit which 

covered the period July 28 through August 18, 2018.

The Board further finds that appellant was at fault in the creation of the overpayment from 

the remaining direct deposit payments for the period August 19 through December 8, 2018.20

In a December 11, 2017 letter, OWCP notified appellant that to avoid an overpayment of 

compensation, she must immediately notify it of her return to work. Appellant was required to 

reimburse OWCP for compensation paid during a period in which she worked. Although OWCP 

may have been negligent in making incorrect payments, this does not excuse a claimant from 

accepting payments he or she knew or should have known to be incorrect.21 In cases involving a 

series of incorrect payments, where the requisite knowledge is established by documentation from 

OWCP or simply with the passage of time and opportunity for discovery, a claimant will be at 

fault for accepting the payments subsequently deposited. By the time of the second payment, 

appellant should have known that she was not entitled to the same amount of wage-loss 

compensation as she had received prior to her return to work on July 28, 2018.22 After her receipt 

of the first direct deposit following her return to work, she was on notice that OWCP began to 

make payments to her in error and knew or should have known that she was not entitled to the 

benefits of the subsequent direct deposits.

 

18 Id.

19 K.K., supra note 10; C.Y., supra note 14; see also M.M., Docket No. 15-0265 (issued May 27, 2015); Danny E. 

Haley, 56 ECAB 393 (2005); Federal (FECA) Procedure Manual, supra note 9.

20 K.K., supra note 10; C.Y., supra note 14; D.W., Docket No. 15-0229 (issued April 17, 2014).

21 K.K., supra note 10; C.G., Docket No. 15-0701 (issued December 9, 2015).

22 Id.
6

The Board therefore finds that the case is not in posture for decision regarding the issue of 

waiver of recovery of the overpayment for the period July 28 through August 18, 2018. The case 

is remanded to determine whether appellant is entitled to waiver of recovery of the overpayment 

covering the period July 28 through August 18, 2018.23

CONCLUSION

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

of compensation in the amount of $9,278.61 because she received total disability compensation 

for the period July 28 through December 8, 2018 after she had returned to full-time modified work. 

The Board further finds that she was without fault in the creation of the overpayment for the period 

July 28 through August 18, 2018, and that she was at fault in the creation of the overpayment for 

the period August 19 through December 8, 2018. The case will be remanded to OWCP to consider 

waiver of recovery of the overpayment for the period July 28 to August 18, 2018.

ORDER

IT IS HEREBY ORDERED THAT the January 18, 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: March 18, 2020

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

 

23 B.R., Docket No. 18-0339 (issued January 24, 2019).