United States Department of Labor

Employees’ Compensation Appeals Board

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T.B., Appellant

and

U.S. POSTAL SERVICE, FRANKLIN D. 

ROOSEVELT STATION POST OFFICE, 

New York, NY, Employer

__________________________________________

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Docket No. 21-0448

Issued: September 27, 2021

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 February 4, 2021 appellant filed a timely appeal from a January 5, 2021 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 $2,569.82 for the period October 28 through December 5, 2020 because she continued 

to receive wage-loss compensation following her return to work; and (2) whether OWCP properly 

 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the January5, 2021 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

found that appellant was at fault in the creation of the overpayment, thereby precluding waiver of 

recovery of the overpayment.

FACTUAL HISTORY

On March 20, 2018 appellant, then a 26-year-old postal support employee sales and 

services distribution associate, filed a traumatic injury claim (Form CA-1) alleging that on that 

date she sustained an injury to the right side of her head when boxes toppled onto her while in the 

performance of duty. She stopped work on the date of injury. OWCP accepted the claim for:

cervical and lumbar sprain; right shoulder rotator cuff strain; head, right knee, and right hand 

contusions; post-concussion syndrome; and cervical disc displacement at the C4-5 level.3It paid 

appellant wage-loss compensation on the supplemental rolls from May 5 through October 13, 2018 

and on the periodic rolls from October 14, 2018 through December 5, 2020.

By letter dated December 3, 2018, OWCP explained how appellant’s compensation rate 

was determined. It also informed appellant that, in order to minimize the possibility of an

overpayment of compensation, she should notify OWCP immediately when she returned to work. 

OWCP again advised appellant to monitor her EFT payments carefully, at least every two weeks. 

In a report of work status (Form CA-3) dated December 1, 2020, the employing 

establishment advised OWCP that appellant had returned to full-time work, without restrictions,

on October 28, 2020. It requested that OWCP declare an overpayment of compensation. 

In a compensation termination calculation worksheet, OWCP calculated appellant’s 

overpayment of compensation for the period October 28 through December 5, 2020. It noted that 

for the period October 28 through November 7, 2020 appellant received a net overpayment of 

compensation of $724.82 and for the period November 8 through December 5, 2020, she received 

a net overpayment of compensation of $1,845.00. The EFT deposit covering the period October 28 

through November 7, 2020 was made on November 7, 2020, while the EFT deposit covering the 

period November 8 through December 5, 2020 was made on December 5, 2020. 

On December 4, 2020 OWCP advised appellant of its preliminary overpayment 

determination that she had received an overpayment of compensation in the amount of $2,569.82 

because she continued to receive compensation for total disability after she returned to work on

October 28, 2020. 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

were incorrect. OWCP explained that more than 30 days had elapsed since the EFT deposit was 

made, which allowed appellant ample time to receive and review a statement from her financial 

institution which showed the details of the improper payment. It requested that she complete an 

overpayment action request form and an overpayment recovery questionnaire (Form OWCP-20), 

and submit supporting financial documentation. Additionally, OWCP informed appellant that 

 

3 The initial acceptance letter of June1, 2018 informed appellant that wage-loss compensation for total disability 

was available only if she was unable to perform the duties of her regular position and that she should notify OWCP if 

she returned to work or obtained new employment. OWCP also advised appellant that, if she received compensation 

payments by electronic funds transfer (EFT), she should monitor her EFT deposits carefully, at least every two weeks. 

It advised that if she worked during a period in which she received compensation, she should notify OWCP in order 

that the overpayment could be collected.
3

within 30 days, she could request a telephone conference, a final decision based on the written 

evidence, or a prerecoupment hearing. 

On December 14, 2020 appellant accepted a modified full-time assignment with the 

employing establishment as a sales and services distribution associate (SSDA).

On December 17, 2020 appellant informed OWCP that she was not working and that she 

had only attended training from October 28 through November 4, 2020. She stated that she had 

accepted a job offer and returned to work for one day on December 14, 2020, but did not return 

thereafter because she was in pain and felt that the position was outside her work restrictions. 

OWCP’s representative advised appellant to provide a written response to the preliminary notice 

of overpayment.

On December 29, 2020 appellant informed OWCP that the employing establishment was 

not following her work restrictions and that her condition had worsened. 

On January 5, 2021 OWCP received a letter from appellant responding to the preliminary 

notice of overpayment. Appellant advised that she attended training from October 28 to 

November 5, 2020. She noted that a check had been generated by the employing establishment 

after training; however, she never received it. Appellant also indicated that she had returned to 

work for one day on December 14, 2020, and had then worked from December 29, 2020 to 

January 2, 2021. 

By decision dated January 5, 2021, OWCP finalized the preliminary overpayment 

determination, finding that appellant received an overpayment of compensation in the amount of 

$2,569.82 for the period October 28 through December 5, 2020 because she continued to receive 

wage-loss compensation following her return to work. It noted appellant’s telephone calls on 

December 17 and 29, 2020, but related that she was advised to submit a response to the preliminary 

determination in writing, but no written response was received. OWCP determined that she was 

at fault in the creation of the overpayment, as she accepted compensation payments which she 

knew or should have known were incorrect. It requested that appellant repay the $2,569.82 

overpayment 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 duty.4

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 

 

4

Supra note 1 at § 8102(a).
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in limited specified instances.5 OWCP’s procedures provide that an overpayment of compensation 

is created when a claimant returns to work, but continues to receive wage-loss compensation.6

ANALYSIS -- ISSUE 1

The Board finds that the case is not in posture for decision. 

The record establishes that appellant returned to the employing establishment for training 

on October 28, 2020. In a letter received by OWCP on January 5, 2021, appellant indicated that 

this training was held from October 28 to November 5, 2020 and that she thereafter did not return 

to work until December 14, 2020. She noted that a check had been generated by the employing 

establishment after training; however, she never received it. 

In the January 5, 2021 decision, OWCP finalized its preliminary overpayment 

determination. It, however, failed to review appellant’s written statement that was received on 

January 5, 2021, the same date it finalized its overpayment determination. In the case of William 

A. Couch,

7

the Board held that, when adjudicating a claim, OWCP is obligated to consider all 

evidence properly submitted by a claimant and received by OWCP before the final decision is 

issued. OWCP’s procedures provide that it is crucial that all relevant evidence received prior to 

the issuance of final decision is addressed, as the Board’s decisions are final with regard to the 

subject matter appealed.8 This principle applies with regard to evidence received by OWCP the 

same day a final decision is issued.9 As OWCP did not address appellant’s written response in its 

January 5, 2021 decision, the Board finds that this case is not in posture for decision.10 

For this reason, the case will be remanded to OWCP to enable it to properly consider all 

the evidence submitted at the time of the January 5, 2021 decision. Following this and other such 

further development as deemed necessary, OWCP shall issue a de novo decision.

 

5

Id. at § 8116(a).

6 C.C., Docket No. 19-1268 (issued April2, 2021); M.P., Docket No. 20-1035 (issued December 1, 2020); L.T., 

Docket No. 19-1389 (issued March 27, 2020); B.H., Docket No. 09-0292 (issued September 1, 2009); Danny E. Haley, 

56 ECAB 393 (2005); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Determinations in an 

Overpayment, Chapter 6.300.4(g) (September 2018).

7

41 ECAB 548 (1990); see also R.D., Docket No. 17-1818 (issued April3, 2018).

8 Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Denials, Chapter 2.1401.5(b)(2) (November 2012). 

See also C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also

William A.Couch, id.

9

See S.S., Docket No. 19-1737 (issued April7, 2020); J.S., Docket No. 16-0505 (issued July 18, 2016); Linda 

Johnson, 45 ECAB 439 (1994) (evidence received the same day as the issuance of OWCP’s decision must be 

reviewed).

10 P.C., Docket No. 20-1216 (issued June25, 2021); see V.C., Docket No. 16-0694 (issued August 19, 2016).
5

CONCLUSION

The Board finds that the case is not in posture for decision.

11

ORDER

IT IS HEREBY ORDERED THAT the January 5, 2021 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: September 27, 2021

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

 

11 In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.