United States Department of Labor

Employees’ Compensation Appeals Board

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C.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Washington, DC, Employer

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Docket No. 19-1743

Issued: March 23, 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

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 27, 2018 appellant filed a timely appeal from an August 29, 2018 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 OWCP properly determined that appellant received an 

overpayment of compensation in the amount of $47,664.83 for the period July 15, 2013 through 

June 25, 2016 as she received compensation based on a loss of wage-earning capacity (LWEC) 

 

1 5 U.S.C. § 8101 et seq. 

2 The record provided to the Board includes evidence received after OWCP issued its August 29, 2018 decision. 

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

determination after returning to work, for which she was without fault; and (2) whether OWCP 

properly denied waiver of recovery of the overpayment.

FACTUAL HISTORY

On December 7, 2007 appellant, then a 24-year-old full-time city carrier, filed a traumatic 

injury claim (Form CA-1) alleging that on December 5, 2007 she injured her neck and back when 

she slipped and fell on an icy porch while in the performance of duty. She stopped work on the 

date of injury. OWCP accepted the claim for a lumbar sprain. It paid appellant wage-loss 

compensation on the supplemental rolls, effective January 21, 2008, and then on the periodic rolls,

effective November 18, 2008.

In a November 18, 2008 letter, OWCP advised appellant that it had placed her on the 

periodic compensation rolls and outlined her entitlement to compensation benefits and her 

responsibility to return to work in connection with the accepted employment injury. It informed 

her that, if she worked for any portion of the period she received disability compensation, she must 

return checks received to OWCP or an overpayment of compensation might result. For payments 

sent by electronic funds transfer (EFT), she was advised to notify OWCP immediately if she 

worked for a portion of the period for which a deposit was made so that the overpayment could be 

collected.

In a completed Form EN1032 dated January 14, 2013, appellant reported part-time private 

sector employment as a home health aide beginning August 20, 2012, with wages of $10.00 per 

hour.

In an LWEC determination dated March 15, 2013, OWCP found that appellant’s part-time 

employment as a home health aide in the private sector, effective August 20, 2012, fairly and 

reasonably represented her wage-earning capacity. It noted that her current pay rate for her job 

when injured was $1,020.42, effective January 1, 2013, and calculated that she earned $370.00 a 

week as a private sector home health aide. OWCP reduced appellant’s wage-loss compensation,

accordingly, effective December 16, 2012. Appellant continued working as a private sector home 

health aide through April 2013.

In a completed Form EN1032 received by OWCP on September 18, 2014, appellant 

reported that she had returned to work at the employing establishment in July 2013 as a letter 

carrier. Appellant noted on a completed Form EN1032 dated August 8, 2015 that permanent 

medical restrictions limited her to working six hours a day, with actual earnings of $30.00 an hour 

or $1,100.00 a week. OWCP continued to pay appellant wage-loss compensation under the 

March 15, 2013 LWEC determination. 

By notice of proposed termination dated March 22, 2016 and finalized June 14, 2016, 

OWCP terminated appellant’s wage-loss and medical compensation benefits, effective June 26, 

2016, as the medical evidence of record established that the accepted conditions had ceased 

without residuals.

In a September 19, 2016 e-mail, the employing establishment confirmed that appellant had 

returned to duty on July 15, 2013. It provided timekeeping records demonstrating that appellant 

worked six hours a day for the period July 15, 2013 through December 31, 2014. 
3

In letter dated January 19, 2018, OWCP made a preliminary determination that appellant 

received an overpayment of compensation in the amount of $47,664.83 for the period July 15, 

2013 through June 25, 2016, because she received wage-loss compensation benefits pursuant to 

the March 15, 2013 LWEC determination through June 25, 2016 although she no longer had a loss 

of her wage-earning capacity after she returned to work at the employing establishment on 

July 15, 2013. It found her at fault in creation of the overpayment, as she should have been 

reasonably expected to realize that she was no longer entitled to the full amount of wage-loss 

compensation after she had returned to work. OWCP calculated that appellant was paid 

compensation as follows: $239.87 for the period July 26 to 29, 2015; $1,449.52 from July 30 to 

August 22, 2015; $10,146.60 from August 23, 2015 to February 6, 2016; $1,389.12 from 

February 7 to 29, 2016; $303.23 from March 1 to 5, 2016; and $6,792.40 for the period March 6 

to June 25, 2016. It totaled these amounts to equal $64,446.38 in compensation received by 

appellant. OWCP calculated that she was entitled to 1,019.47 hours of compensation for the period

July 15, 2013 to June 25, 2016, as she only worked six hours a day and was entitled to 

compensation for the remaining two hours a day, totaling $16,781.55. It deducted appellant’s 

$16,781.55 entitlement from the $64,446.38 of compensation paid to determine that a $47,664.83 

overpayment of compensation had been made. OWCP informed appellant of her appeal rights and 

instructed her to complete an enclosed overpayment recovery questionnaire (Form OWCP-20) and 

submit supporting documentation, including tax returns, bank account statements, pay slips, and 

applicable financial records to support her income and expenses within 30 days.

On February 21, 2018 OWCP received appellant’s January 27, 2018 request for a 

telephonic hearing before a representative of OWCP’s Branch of Hearings and Review on the 

issues of fault and possible waiver. Appellant indicated that she had notified OWCP of her 

employment and had done everything required of her. With the request she provided a partially 

completed Form OWCP-20, noting monthly household expenses of $1,758.00 for mortgage, 

$300.00 for food, $200.00 for clothing, $400.00 for utilities, and $550.00 for a car payment. 

Appellant further noted that she lived with her minor daughter and had no sources of income other 

than her federal salary. During the hearing, held on July 9, 2018, she contended that she had not 

knowingly accepted payments to which she was not entitled. 

By decision dated August 29, 2018, OWCP finalized the determination that appellant 

received an overpayment of compensation in the amount of $47,664.83 for the period July 15, 

2013 through June 25, 2016, because she continued to receive compensation benefits based on the 

March 15, 2013 LWEC determination, predicated on her actual earnings as a home health aide, 

after she returned to work at the employing establishment. It found that she was without fault in 

creation of the overpayment. OWCP directed appellant to repay the $47,664.83 in the amount of 

$450.00 a month, based on reported monthly expenses of $4,269.00 and monthly income of 

$4,790.00, a difference of $521.00 a month. It noted that she had not submitted sufficient financial 

information for consideration of waiver of recovery of the overpayment. OWCP found that 

recovery of the overpayment would not be against good conscience as appellant did not relinquish 

a valuable right or change her position for the worse in reliance on her compensation payments.

LEGAL PRECEDENT -- ISSUE 1

Section 8102 of FECA provides that the United States shall pay compensation for the 

disability of an employee resulting from personal injury sustained while in the performance of 
4

duty.3 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.4

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 or she may 

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

circumstances.5 OWCP’s regulations provide in pertinent part: 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.6 A 

claimant is not entitled to receive temporary total disability benefits and actual earnings for the 

same period.7 OWCP’s procedures also provide that an overpayment in compensation is created 

when a claimant returns to work, but continues to receive wage-loss compensation.8

OWCP’s procedures provide that, once an overpayment is identified, it is responsible for 

determining whether the claimant was with fault or without fault, issuing a preliminary finding, 

and unless a hearing is requested, OWCP is responsible for issuing a final decision.9 These 

procedures note that, if the claimant is determined to be without fault, a preliminary overpayment 

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

overpayment is identified. Both the reason that the overpayment occurred and the reason for the 

finding of without fault must be clearly stated. A preliminary overpayment determination informs 

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

of: (a) fact and amount of overpayment; and (b) waiver of recovery of the overpayment. Along 

with the preliminary overpayment determination, OWCP should provide a clearly written 

statement explaining how the overpayment was created.10

 

3 5 U.S.C. § 8102. 

4

Id. at § 8129(a). 

5

Id. at § 8116(a).

6 20 C.F.R. § 10.500. 

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

8 See J.S., Docket No. 17-0260 (issued December 28, 2017); B.H., Docket No. 09-0292 (issued September 1, 2009); 

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.1 

(September 2018). 

9 Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 

6.200.4(a)(2) (May 2004).

10 Id.; see also L.P., Docket No. 18-0095 (issued March 12, 2020).
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ANALYSIS -- ISSUE 1

The Board finds that OWCP improperly determined that appellant received an 

overpayment of compensation in the amount of $47,664.83 for the period July 15, 2013 through 

June 25, 2016 as she received compensation based on an LWEC determination after returning to 

work.

An overpayment of compensation was identified when on September 19, 2016, OWCP 

received an e-mail from the employing establishment which confirmed that appellant had returned 

to duty on July 15, 2013. It was not until January 19, 2018, however, that OWCP issued a 

preliminary determination finding an overpayment in the amount of $47,664.83 had been created 

for the period July 15, 2013 through June 25, 2016.

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

preliminary overpayment determination and found appellant without fault in the creation of the 

$47,664.83 overpayment for the period July 15, 2013 through June 25, 2016, because she 

continued to receive compensation benefits based on the March 15, 2013 LWEC determination, 

predicated on her actual earnings as a home health aide, after she returned to work at the employing 

establishment. The hearing representative found that she was without fault in creation of the 

overpayment. OWCP directed appellant to repay the $47,664.83 in the amount of $450.00 per 

month.

The Board finds that OWCP failed to follow its procedures in issuing the January 19, 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.11 In this case, OWCP first identified the overpayment of compensation 

on September 19, 2016, but it did not, however, issue a preliminary notice regarding the 

overpayment until January 19, 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 $47,664.83 for the 

period July 15, 2013 through June 25, 2016.

12

CONCLUSION

The Board finds that OWCP improperly determined that appellant received an 

overpayment of compensation in the amount of $47,664.83 for the period July 15, 2013 through 

June 25, 2016.

 

11 See id. 

12 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 August 29, 2018 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: March 23, 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