United States Department of Labor

Employees’ Compensation Appeals Board

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M.B., Appellant

and

U.S. POSTAL SERVICE, PALOS VERDES 

PENINSULA POST OFFICE, Palos Verdes, CA, 

Employer

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Docket No. 20-1130

Issued: June 28, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 4, 2020 appellant filed a timely appeal from a November 20, 2019 merit decision 

of the Office of Workers’ Compensation Programs (OWCP).1 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 Following the November 20, 2019 decision, OWCP issued a February 12, 2020 overpayment decision, which it 

rescinded on March 16, 2020 as appellant had timely requested a prerecoupment hearing on February 7, 2020. The

hearing was scheduled on April 29, 2020 for June 15, 2020. Thus, this issue is in an interlocutory posture and not

reviewable by the Board on this appeal. See T.C., Docket No. 18-0435 (issued July 10, 2018); see also 20 C.F.R. 

§ 501.2(c)(2).

2 5 U.S.C. § 8101 et seq.

3 The Board notes that, following the November 20, 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

ISSUES

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

overpayment of compensation in the amount of $5,700.69 for the period July 18 through 

November 21, 2016 for which he was not at fault, as he was inadvertently paid intermittent wageloss compensation for days he either worked or was scheduled off; (2) whether it properly denied 

waiver of recovery of the overpayment; and (3) whether OWCP properly required recovery of the 

overpayment by deducting $798.25 from appellant’s continuing schedule award payments every 

28 days.

FACTUAL HISTORY

On June 29, 2016 appellant, then a 68-year-old postal carrier, filed an occupational disease 

claim (Form CA-2) alleging that he was unable to lift his left arm and had severe pain in the rotator 

cuff and muscle due to factors of his federal employment. He indicated that he first became aware 

of his condition and its relation to his federal employment on May 30, 2016. On the reverse side 

of the claim form the employing establishment indicated that appellant stopped work on June 2, 

2016 and returned to work on June 8, 2016. On June 29, 2016 appellant’s attending physician 

released him to return to modified duty with restrictions of limited use of the left shoulder, no 

overhead work, no pushing, pulling, or lifting over 20 pounds. On October 11, 2016 OWCP 

accepted his claim for left shoulder girdle sprain and bursitis of the left shoulder.

On October 28 and December 5, 2016 appellant filed claims for intermittent compensation 

(Form CA-7) for leave without pay (LWOP) for the periods May 30 through October 28, 2016 and 

June 29 through November 21, 2016. He also submitted a series of time analysis forms (Form 

CA-7a) indicating that he used 88 hours of LWOP for each of the periods claimed. On October 28, 

2016 the employing establishment approved appellant’s request for LWOP, excluding only the 

days in which he was scheduled off or had performed work consecutively from June 30 through 

July 6, 2016.. Appellant further requested consecutive days of LWOP from July 8 through 14, 

2016 and intermittently beginning July 18 through October 28, 2016. 

On November 2, 2016 the employing establishment notated on the October 28, 2016 

CA-7a that appellant used 54.45 hours of LWOP rather than 88 hours claimed from June 3 through 

July 6, 2016, as he had been scheduled off for work June 3, 4, 13, and 21, 2016, and he worked 

1.55 hours on June 24, 2016, warranting only 6.45 hours of LWOP. For the relevant period of 

June 30 through July 6, 2016, it indicated that appellant used 8 hours of LWOP on each of the 6 

days or 48 hours of LWOP. For the period July 7 through 20, 2016, the employing establishment 

indicated that appellant used 69.93 hours of LWOP as July 7 and 15, 2016 were scheduled days 

off and he worked 2.07 hours on July 20, 2016, using only 5.93 hours of LWOP. From July 25 

through August 13, 2016, the employing establishment found that appellant used 72 hours of 

LWOP as July 25 and August 10, 2016 were scheduled days off. For the period August 15 

through 27, 2016, the employing establishment reported that appellant used 64 hours of LWOP as 

August 18, 26, and 27, 2016 were scheduled days off. From August 29 through September 9, 

2016, the employing establishment found that he used 75.19 hours of LWOP as September 5, 2016 

was a scheduled day off, and he worked 2.74 hours on September 7, 2016 using 5.25 hours of 

LWOP. Appellant also worked 2.05 hours on September 9, 2016 using 5.94 hours of LWOP. 

From September 10 through 22, 2016, the employing establishment found that he used 72 hours 

of LWOP as September 13 and 21, 2016 were scheduled days off. For the period September 23 
3

through October 5, 2016, the employing establishment found that appellant used 80 hours of 

LWOP as September 29, 2016 was a scheduled day off. During the period October 6 through 18, 

2016, the employing establishment reported that appellant used 64 hours of LWOP as October 7, 

8, and 17, 2016 were scheduled days off. For the period October 19 through 28, 2016, the 

employing establishment found that appellant used 64 hours of LWOP as October 25, 2016 was a 

scheduled day off. The total number of LWOP hours supported by the employing establishment 

for the period June 30 through October 28, 2016 was 609.12.

On his December 5, 2016 Form CA-7a, appellant claimed, and the employing 

establishment approved, intermittent LWOP for the period July 18 through November 21, 2016. 

Based on the employing establishment’s calculations, appellant used 56.18 of LWOP from July 18

through August 1, 2016 rather than 88 hours claimed, as he had three scheduled days off on June 29 

July 7 and 25, 2016, and he performed work on July 20, 21, 22, and 27, 2016 using only 5.93 hours 

of LWOP on July 20, 6.28 hours on July 21, 5.99 hours on July 22, and 5.97 hours on 

July 27, 2016. From August 3 through 31, 2016, the employing establishment found appellant 

used only 72 hours of LWOP as August 18 and 24, were scheduled days off. During the period 

September 1 through 22, 2016, the employing establishment found appellant used 67.19 rather 

than 88 hours of LWOP as September 13 and 21, 2016 were scheduled days off. Appellant also 

worked on September 7 and 9, 2016, using 5.25 and 5.94 hours of LWOP, respectively, on those 

dates. For the period September 27 through October 19, 2016, the employing establishment 

reported that appellant used 80 hours of LWOP as September 29, 2016 was a scheduled day off. 

During the period October 20 through November 21, 2016 the employing establishment reported 

that appellant used 48 hours of LWOP as October 25, November 2 and 18, 2016 were scheduled 

days off The total number of LWOP hours supported by the employing establishment for the 

period June 29 through November 21, 2016 was 323.37.4

The employing establishment also provided leave reports indicating that appellant began 

using LWOP on June 30, 2016 and noting his work and scheduled days off. In a memorandum of 

telephone call (Form CA-110) dated December 15, 2016, the employing establishment informed 

OWCP that appellant had included eight hours of LWOP on scheduled days off as well as when 

he worked part of the day. It noted that it had corrected the CA-7a forms, providing the actual 

hours worked and the scheduled days off identified by slash marks.

On December 27, 2016 OWCP paid LWOP compensation for the period June 30 through 

November 21, 2016 for a total of 712.46 hours in the amount of $11,904.71. The attached 

calculation indicated that OWCP reduced appellant’s compensation by the appropriate hours that 

he worked from June 30 to September 9, 2016. OWCP found that there were 91 days on which he 

was entitled to 8 hours of LWOP from June 30 through November 21, 2016.5 In a letter dated 

 

4 The October 28 and December 5, 2016 Form CA-7s requested compensation for distinct and consistent dates. On 

the October 28, 2016 Form CA-7, appellant requested intermittent LWOP for the period June 30 through 

October 28, 2016. He did not claim these same dates on the December 5, 2016 Form CA-7, requesting intermittent 

LWOP for the period August 3 through November 21, 2016. Appellant claimed intermittent LWOP for the period 

July 18 through October 27, 2016 on both CA-7 forms and the accompanying CA-7a forms. 

5

In combining the dates accepted from both CA-7a forms, the Board reaches a total of 85 days on which appellant 

is entitled to eight hours of LWOP.
4

June 2, 2017, it informed appellant had that he would be compensated every 28 days on the 

periodic rolls.

By decision dated December 27, 2016, OWCP denied appellant’s claims for compensation 

for disability for the period May 30 through June 28, 2016.

In a letter dated June 2, 2017, OWCP informed appellant had that he would be compensated 

every 28 days on the periodic rolls.

On October 26, 2018 appellant filed a schedule award claim (Form CA-7). He filed an 

additional schedule award claim on May 20, 2019. 

By decision dated August 7, 2019, OWCP granted appellant a schedule award for 13 

percent permanent impairment of the left upper extremity.

In a manual adjustment form dated September 23, 2019, OWCP noted that appellant had 

received compensation for intermittent hours as no work was available beginning on June 3, 2016. 

It found that the claim for compensation received on December 9, 2016 had incorrect hours and 

that on December 21, 2016 the employing establishment clarified appellant’s LWOP hours. 

OWCP noted that LWOP compensation was issued for the period for a total of 712.46 hours, but 

that correct total was 323.37 hours based on the Form CA-7a. It found that appellant had received 

compensation in the amount of $11.904.71, that he was entitled to compensation in the amount of 

$6,204.02 and, thus, an overpayment of $5,700.69 resulted. 

In an October 7, 2019 letter, OWCP issued a preliminary overpayment determination,

finding that appellant received an overpayment of compensation benefits for the period July 18, 

through November 21, 2016 in the amount of $5,700.69 as he was paid for more intermittent hours 

than he was due for this period. It listed the dates that he was overpaid as he either worked or was 

scheduled off work. OWCP provided a calculation of the overpayment and found that appellant 

was without fault in the creation of the overpayment. It requested that he complete an enclosed 

overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial 

documentation. Additionally, OWCP provided an overpayment action request form and notified 

appellant that, within 30 days of the date of the letter, he could request a final decision based on 

the written record or request a prerecoupment hearing. No response was received.

By decision dated November 20, 2019, OWCP finalized the October 7, 2019 preliminary 

overpayment determination.6 It found that appellant had received an overpayment of 

compensation in the amount of $5,700.69 for the period from July 18 through November 21, 2016 

for which he was not at fault. OWCP further found that the overpayment was not subject to waiver 

as appellant had not provided requested financial documentation to establish that recovery of an 

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

It determined to recover the overpayment by withholding $798.25 every 28 days from appellant’s 

continuing schedule award payments beginning on December 7, 2019. 

 

6 See supra note 1. 
5

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 

duty.7 

Section 8116 of FECA defines the limitations on the right to receive compensation 

benefits.8 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.9 OWCP’s regulations provide in pertinent part 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.10 A claimant is not entitled to receive temporary total disability and actual earnings for the 

same period.11

ANALYSIS -- ISSUE 1

The Board finds that OWCP improperly determined that appellant received an 

overpayment of compensation in the amount of $5,700.69 for the period July 18 through 

November 21, 2016.

Appellant provided two CA-7s forms, claiming intermittent compensation for disability. 

The first was dated October 28, 2016 and requested intermittent LWOP for the period June 3 

through October 28, 2016 and the second was dated December 5, 2016 requesting intermittent 

LWOP for the period June 29 through November 21, 2016. Appellant initially requested 88 hours 

of LWOP for each period submitted. The employing establishment edited the attached CA-7a

forms and on October 28, 2016 indicated that appellant was entitled to 609.12 hours of LWOP for 

the period June 30 through October 28, 2016, while on December 5, 2016 it indicated that 

appellant was entitled to 323.37 hours for the period June 29 through November 21, 2016.12 In a 

December 15, 2016 Form CA-110, the employing establishment requested OWCP base 

appellant’s LWOP compensation on the information it provided on the edited Form CA-7a’s.

On December 27, 2016 OWCP paid appellant wage-loss compensation for the period 

June 30 through November 21, 2016 for a total of 712.46 hours in the amount of $11,904.71. 

However, it found that he was only entitled to compensation in the amount of $6,204.02.

 

7 5 U.S.C. § 8102.

8

Id. at § 8116(a).

9

Id.

10 20 C.F.R. § 10.500.

11 G.R., Docket No. 19-0940 (issued December 20, 2019); J.H., Docket No. 17-0592 (issued May 1, 2018).

12 The November 2, 2016 Form CA-7a does not include August 3, 4, and 16, 2016 as noted on the December 9, 

2016 form, as well as November 1, 3, 15, and 21, 2016. There are 48 dates from June 30 through October 28, 2016 

that are included on the November 2, 2016 Form CA-7a, which are not listed on the December 9, 2016 CA-7a.
6

In its preliminary overpayment determination dated October 7, 2019, OWCP found that 

appellant received an overpayment of compensation from July 18 through November 21, 2016 in 

the amount of $5,700.69. The Board finds that OWCP has not adequately explained how it 

determined the amount of the overpayment based on its calculation of 323.37 hours of LWOP.

13

 

The records from the employing establishment support both that appellant was entitled to 541.12

hours of LWOP from June 30 through October 28, 2016 and that he was entitled to additional 

hours of intermittent LWOP through November 21, 2016. Based upon the current record, the 

Board is unable to verify the fact and amount of the overpayment due to the conflicting evidence 

regarding appellant’s intermittent periods of disability.14 OWCP has the burden of proof to 

establish fact and amount of an overpayment.15 As there is conflicting evidence16 regarding the 

specific dates that appellant was entitled to work, but no work was available for him, the Board 

finds that OWCP has improperly determined the fact and amount of overpayment, therefore, the 

overpayment is reversed.

CONCLUSION

The Board finds that OWCP improperly determined that appellant received an 

overpayment of compensation in the amount of $5,700.69 for the period July 18 through 

November 21, 2016. 

 

13 But see Mary A. Corricelli, Docket No. 93-1920 (issued February 24, 1995) (finding that OWCP properly 

calculated the number of lost work days during the period in question).

14 C.S., Docket No. 18-0450 (issued July 31, 2020); M.M., Docket No. 19-1782 (issued April 2, 2020).

15 See D.R., Docket No. 19-1675 (issued October 8, 2020); T.W., Docket No. 19-1266 (issued September 25, 2020);

C.P., Docket No. 19-0317 (issued July 1, 2019) (finding that OWCP did not meet its burden of proof to establish an 

overpayment when it failed to document whether and when a claimant elected life insurance coverage after separation 

from federal service or retirement in order to establish fact of overpayment of compensation.) 

16 See Gloria H. Kulik, 40 ECAB 628 (issued February 28, 1989) (the Board remanded the case for further 

development due to the discrepancies with respect to the amount of compensation due appellant).
7

ORDER

IT IS HEREBY ORDERED THAT the November 20, 2019 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: June 28, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board