United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

V.J., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Charlotte, NC, Employer

__________________________________________

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Docket No. 20-1335

Issued: March 11, 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

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On June 25, 2020 appellant filed a timely appeal from a March 31, 2020 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 $1,389.20 for the period February 13 through 29, 2020 because she had returned to fulltime work on February 13, 2020, but continued to receive wage-loss compensation through 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the March 31, 2020 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

February 29, 2020; and (2) whether OWCP abused its discretion in denying waiver of recovery of 

the overpayment.

FACTUAL HISTORY

On October 4, 2018 appellant, then a 34-year-old rural carrier associate, filed a traumatic 

injury claim (Form CA-1) alleging that on October 2, 2018 she sustained a right shoulder injury 

when she reached to close a truck door that stalled after unloading a package while in the 

performance of duty. She stopped work on October 2, 2018. OWCP accepted the claim for strain 

of the muscles and tendons of the right rotator cuff, and right shoulder impingement syndrome. It 

paid appellant wage-loss compensation for disability from November 17, 2018 through October 1, 

2019, when she returned to full-time limited-duty work. 

On November 12, 2019 appellant underwent authorized right rotator cuff repair and 

subacromial decompression. OWCP paid her compensation on the supplemental rolls for the 

period November 10, 2019 through February 1, 2020 and on the periodic rolls from February 2 

through 29, 2020. 

On February 5, 2020 OWCP outlined appellant’s entitlement to compensation benefits. An 

attached Form EN1049 instructed that, if she worked during any portion of the covered period

from January 4 through February 29, 2020, 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 deposits carefully, at least every two weeks.

The employing establishment, in a return to work form (Form CA-3) dated February 25, 

2020, advised OWCP that appellant had returned to full-time, modified-duty work on 

February 13, 2020. 

In a February 26, 2020 worksheet, OWCP calculated that appellant received a $1,389.20 

overpayment in compensation for the period February 13 through 29, 2020. 

By letter dated February 26, 2020, OWCP advised appellant of its preliminary 

determination that she received an overpayment of compensation in the amount of $1,389.20 

because she received wage-loss compensation for temporary total disability (TTD) for the period 

February 13 through 29, 2020 after she had returned to full-time work. It also made a preliminary 

finding that she was without fault in the creation of the overpayment as she did not have knowledge 

of the erroneous payment. OWCP advised appellant 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 documentation. Additionally, OWCP notified appellant that, 

within 30 days of the date of the letter, she could request a final decision based on the written 

record, or a prerecoupment hearing. No response was received.

On February 29, 2020 the EFT for the period February 2 through 29, 2020 was deposited 

into appellant’s bank account.
3

By decision dated March 31, 2020, OWCP finalized the preliminary overpayment 

determination, indicating that appellant had received an overpayment of compensation in the 

amount of $1,389.20 for the period February 13 through 29, 2020. It further found that she was 

not at fault in the creation of the overpayment because she was not, or could not have been aware, 

that she was not entitled to the payment received. OWCP noted that appellant had not submitted 

financial information justifying waiver of recovery of the overpayment. It therefore found that she

was not entitled to waiver of recovery of the overpayment. OWCP ordered that appellant should 

repay the overpayment in its entirety.

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.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(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.5 Section 10.500 of OWCP’s regulations provides 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.6 A 

claimant is not entitled to receive TTD benefits and actual earnings for the same time period.7 

OWCP’s procedures provide that an overpayment of compensation is created when a claimant 

returns to work, but continues to receive wage-loss compensation for TTD.8

ANALYSIS -- ISSUE 1

The Board finds that appellant received an overpayment of compensation in the amount of 

$1,389.20 for the period February 13 through 29, 2020 because she had returned to full-time 

 

 

3 5 U.S.C. § 8102(a).

 

4

Id. at § 8129(a).

 

5

Id. at § 8116(a).

 

6 20 C.F.R. § 10.500(a).

 

7 See L.T., Docket No. 19-1389 (issued March 27, 2020); C.H., Docket No. 19-1470 (issued January 24, 2020); 

L.S., 59 ECAB 350, 352-53 (2008).

 

8 L.T., id.; C.H., id.; Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Identifying and Calculating 

an Overpayment, Chapter 6.200.1(a) (September 2018).
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modified-duty work on February 13, 2020, but continued to receive wage-loss compensation 

through February 29, 2020.

The Board finds that the evidence of record establishes that appellant returned to full-time,

modified-duty work for the employing establishment, effective February 13, 2020, but continued 

to receive full wage-loss compensation through February 29, 2020. As noted above, a claimant is 

not entitled to receive wage-loss compensation benefits for TTD and actual earnings for the same 

time period.9 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 February 13 through 29, 2020. Thus, the Board finds 

that appellant received an overpayment of compensation in the amount of $1,389.20 for the period 

February 13 through 29, 2020.

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.”

10

 

Section 10.438 of OWCP’s regulations provides that the individual who received the 

overpayment is responsible for providing information about income, expenses, and assets as 

specified by OWCP. This information is needed to determine whether or not recovery of an 

overpayment would defeat the purpose of FECA or be against equity and good conscience. Failure 

to submit the requested information within 30 days of the request shall result in denial of waiver.

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ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied waiver of recovery of the $1,389.20 

overpayment of compensation.

As OWCP found appellant without fault in the creation of the overpayment, waiver must 

be considered, and repayment is still required unless adjustment or recovery of the overpayment 

would defeat the purpose of FECA or be against equity and good conscience.12 For consideration 

of waiver, appellant had the responsibility to provide the appropriate financial information to 

OWCP.13

 

9 See supra notes 6-8.

 

10 5 U.S.C. § 8129(b).

11 20 C.F.R. § 10.438; R.Q., Docket No. 18-0964 (issued October 8, 2019).

 

12 Id.; see also O.B., Docket No. 19-0034 (issued April 22, 2019).

 

13 Id.; see also S.M., Docket No. 17-1802 (issued August 20, 2018).
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In its preliminary overpayment determination dated February 26, 2020, OWCP requested 

that appellant provide a completed overpayment recovery questionnaire and supporting financial 

information. It advised her that waiver of recovery would be denied if she failed to furnish the 

requested financial information within 30 days. No response was received. As a result, OWCP 

did not have the necessary financial information to properly determine whether recovery of the 

overpayment would defeat the purpose of FECA or if recovery would be against equity and good 

conscience. 

As appellant did not submit the financial information required under section 10.438 of 

OWCP’s regulations,14 which was necessary to determine her eligibility for waiver, the Board 

finds that OWCP properly denied waiver of recovery of the $1,389.20 overpayment of 

compensation.15

On appeal appellant contends that OWCP should have waived recovery of the overpayment 

as she was not at fault in its creation and as recovery would cause financial hardship. As explained 

above, appellant did not submit the financial information necessary for OWCP to consider waiver 

of recovery of the overpayment.

CONCLUSION

The Board finds that appellant received an overpayment of compensation in the amount of 

$1,389.20 for the period February 13 through 29, 2020 because she had returned to full-time 

regular-duty work on February 13, 2020, but continued to receive wage-loss compensation for

TTD through February 29, 2020. The Board further finds that OWCP properly denied waiver of 

recovery of the $1,389.20 overpayment of compensation.

 

14 20 C.F.R. § 10.438.

 

15 E.K., Docket No. 18-0587 (issued October 1, 2018).
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ORDER

IT IS HEREBY ORDERED THAT the March 31, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 11, 2021

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