United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.L., Appellant

and

DEPARTMENT OF AGRICULTURE, 

VETERINARY SERVICES, Wilmar, MN, 

Employer

__________________________________________

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Docket No. 19-1690

Issued: February 25, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 7, 2019 appellant filed a timely appeal from a July 29, 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.

ISSUES

The issues are: (1) whether OWCP properly determined that appellant received an 

overpayment of compensation in the amount of $3,378.81 for the period February 10 through 

March 4, 2017; and (2) whether OWCP properly determined that appellant was at fault in the 

creation of the $3,378.81 overpayment and, therefore, precluded from waiver of recovery of the 

overpayment.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

OWCP accepted that on May 3, 2015 appellant, then a 61-year-old veterinary medical 

officer, sustained: recent partial retinal detachment with single defect, left; other complications 

affecting other specified body systems, not elsewhere classified, left; retained (old) intraocular 

foreign body nonmagnetic, unspecified, left; and unspecified complication of corneal transplant 

vitreous degeneration, left eye when he hit his head on a post in a barn as he tried to grab chickens 

to test for backyard surveillance while in the performance of duty. Appellant underwent authorized 

left eye surgery on August 26, 2015.

On February 1, 2016 appellant filed a claim for a schedule award (Form CA-7). 

By decision dated September 21, 2016, OWCP granted appellant a schedule award for 25 

percent permanent impairment of the left eye. The award ran for a period of 40 weeks from May 6, 

2016 to February 9, 2017. Appellant’s weekly pay was computed at $1,024.77 based on the 66 2/3 

percent augmented rate for employees with no dependents, totaling $4,099.09 in continuing 

payments every four weeks.

In a printout from the Automated Compensation Payment System (ACPS), OWCP 

documented that it paid appellant an additional sum of $3,378.81 for the period February 10 

through March 4, 2017 as appellant’s schedule award compensation should have terminated on

February 9, 2017. Copies of fiscal worksheets were provided.

In a preliminary determination dated January 16, 2019, OWCP notified appellant that he 

had received an overpayment of compensation in the amount of $3,378.81 for the period 

February 10 through March 4, 2017 because he was overpaid for his schedule award. It explained 

that he received $3,378.81 in error during the stated period because his schedule award expired on 

February 9, 2017. OWCP advised that appellant was at fault in the creation of the overpayment 

because he accepted a payment that he knew or reasonably should have known was incorrect. It

informed him of his review rights and instructed him to complete an enclosed overpayment 

recovery questionnaire (Form OWCP-20) and submit supporting documentation within 30 days.

Appellant, in a January 23, 2019 overpayment action request, requested a prerecoupment 

hearing before an OWCP hearing representative, contesting the finding of fault and requesting

waiver of recovery of the overpayment. He argued that he was not at fault in the creation of the 

overpayment because the total amount of his schedule award payments was not listed or made 

known to him in the September 21, 2016 schedule award decision and the funds were electronically 

deposited into his bank account and he had no knowledge of the transaction until the money 

appeared.

In an accompanying Form OWCP-20 dated January 23, 2019, appellant indicated that he 

had no monthly income since being furloughed on December 22, 2018. He also reported that he 

had no monthly expenses. Appellant had $300.00 in funds.

A telephonic hearing was held before an OWCP hearing representative on May 13, 2019. 

During the hearing, appellant acknowledged that he had received an overpayment of 
3

compensation, but argued that the overpayment occurred through no fault of his own because he 

did not realize it had occurred at the time he received schedule award payments.

Following the hearing, OWCP received a completed Form OWCP-20 dated June 5, 2019. 

Appellant noted total monthly income of $4,844.08, monthly expenses of $4,656.50, and 

$2,133.00 in funds. He submitted a divorce decree and supporting financial documentation.

By decision dated July 29, 2019, an OWCP hearing representative finalized the preliminary 

overpayment determination, finding that appellant was overpaid in the amount of $3,378.81 for 

the period February 10 through March 4, 2017 because he received continued schedule award 

compensation after his schedule award had expired on February 9, 2017. She found that he was 

at fault in the creation of the overpayment as he knew or should have known that the payments 

were incorrect and that he was, therefore, not entitled to waiver of recovery of the overpayment. 

The hearing representative evaluated appellant’s income and expenses and found that he had

$972.48 available in monthly discretionary income. She set recovery of the overpayment at the 

rate of $500.00 per month.

LEGAL PRECEDENT -- ISSUE 1

The schedule award provisions of FECA2and its implementing regulations3set forth the

number of weeks of compensation payable to employees sustaining permanent impairment from

loss or loss of use, of scheduled members or functions of the body. Section 20 C.F.R. § 10.404

provides that compensation is provided for specified periods of time for the permanent loss or loss

of use of certain members.4

OWCP’s procedures provide that an overpayment is created when a schedule award

expires, but compensation continues to be paid.5

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $3,378.81 for the period February 10 through March 4, 2017.

OWCP granted appellant a schedule award for 25 percent permanent impairment of the left

eye on September 21, 2016 for the period May 6, 2016 through February 9, 2017. The evidence

of record establishes that OWCP continued to pay his schedule award compensation after

February 9, 2017, the date the award expired. Consequently, the $3,378.81 payment received for

the period February 10 through March 4, 2017 constituted an overpayment of compensation.

 

2

Id.

3 20 C.F.R. § 10.404.

4

Id. Effective May 1, 2009 OWCP began using the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (6th ed. 2009). See E.V., Docket No. 17-2026 (issued July 11, 2018).

5 Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.2(c) 

(May 2004).
4

Appellant has not contested this amount.6 The Board accordingly affirms the fact and amount of

the overpayment.7

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.”

8

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

waiver.9 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.10

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.11

ANALYSIS -- ISSUE 2

The Board finds that OWCP improperly determined that appellant was at fault in the 

creation of the $3,378.81 overpayment and, therefore, precluded from waiver of recovery of the 

overpayment.

In Tammy Craven,

12 the Board explained that an employee who receives payment from

OWCP in the form of a direct deposit may not be at fault for the first incorrect deposit into his or

her account since the acceptance of the overpayment, at the time of receipt of the direct deposit,

lacks requisite knowledge. The Board has recognized that, in the case of electronic fund transfers

(EFTs), an employee would not receive notification of the date and amount of payment until after

 

6 A.B., Docket No. 18-0922 (issued January 3, 2019); E.V., Docket No. 17-2026 (issued July 11, 2018).

7 A.B., id.; R.S., Docket No. 17-1985 (issued March 23, 2018).

8 5 U.S.C. § 8129(b).

9 See C.Y., Docket No. 18-0263 (issued September 14, 2018).

10 20 C.F.R. § 10.433(a).

11 Id. at § 10.433(b); see also D.M., Docket No. 17-0983 (issued August 3, 2018).

12 Docket No. 05-0249 (issued June 20, 2005), Order Granting Petition for Recon. and Reaffirming Prior Decision, 

Docket No. 05-0249 (issued July 24, 2006).
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the deposit was made and the overpayment created.13 Because fault is defined by what the claimant

knew or should have known at the time of acceptance, one of the consequences of EFTs is that the

claimant lacks the requisite knowledge at the time of the first incorrect payment.14

In this case, appellant received one electronic deposit on March 4, 2017 in the amount of

$3,378.81. OWCP failed to establish that he was at fault in the creation of the overpayment as he

could not avoid the incorrect payment sent by EFT.15 Although appellant accepted the

overpayment at the time it was deposited into his account, OWCP has not shown that he knew or

should have known at the time of the direct deposit on March 4, 2017 that the payment was

incorrect.16 Appellant had no reason to suspect at the time of the direct deposit that OWCP had

issued an incorrect payment since this was the first and only incorrect payment made.17

The Board finds that appellant was not at fault in the creation of the $3,378.81 overpayment

received on March 4, 2017.

18

 The case must be remanded for OWCP to determine whether he is

entitled to waiver of recovery of the overpayment, followed by an appropriate decision.19

CONCLUSION

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

of compensation in the amount of $3,378.81 for the period February 10 through March 4, 2017.

The Board further finds that OWCP improperly determined that appellant was at fault in the 

creation of the $3,378.81 overpayment.

 

13 See J.H., Docket No. 15-0195 (issued March 17, 2015).

14 George A. Hirsch, 47 ECAB 520 (1996).

15 J.S., Docket No. 12-1707 (issued June 10, 2013).

16 V.A., Docket No. 12-0637 (issued August 27, 2012).

17 See S.C., Docket No. 14-1730 (issued April 13, 2015).

18 A.B., supra note 6; E.T., Docket No. 15-0611 (issued June 2, 2015).

19 A.B., id.
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ORDER

IT IS HEREBY ORDERED THAT the July 29, 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: February 25, 2020

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board