United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.G., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

WEST PALM BEACH VA MEDICAL CENTER, 

West Palm Beach, FL, Employer

__________________________________________

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Docket No. 23-0780

Issued: October 13, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On May 12, 2023 appellant filed a timely appeal from a May 11, 2023 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 appellant received an overpayment of compensation in the 

amount of $3,145.78 for the period January 30 through February 25, 2023, for which she was 

without fault, because she continued to receive wage-loss compensation for total disability

following her return to full-time work; and (2) whether OWCP properly denied waiver of recovery 

of the overpayment.

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On January 27, 2022 appellant, then a 62-year-old nursing assistant, filed a traumatic injury 

claim (Form CA-1) alleging that on January 23, 2022 she sustained a right shoulder injury when 

assisting others cleaning a combative patient while in the performance of duty. She stopped work 

on January 23, 2022. OWCP accepted the claim for right shoulder joint sprain and right rotator 

cuff tear. It paid appellant wage-loss compensation on the supplemental rolls as of March 11, 2022 

and on the periodic rolls as of December 4, 2022. 

The employing establishment offered appellant a full-time modified assignment on light 

duty as a nursing assistant in acute care on January 20, 2023, which appellant accepted on 

January 23, 2023. Appellant returned to work on January 30, 2023. 

In a fiscal worksheet dated March 8, 2023, OWCP calculated that it had paid appellant 

wage-loss compensation in the net amount of $3,262.29 for the period January 29 through 

February 25, 2023.

In a preliminary overpayment determination dated March 15, 2023, OWCP advised 

appellant that an overpayment of compensation in the amount of $3,145.78 had been created 

because she returned to work full time on January 30, 2023, but continued to receive wage-loss 

compensation for total disability through February 25, 2023. OWCP noted that appellant had 

received compensation for the 28-day period covering January 29 through February 25, 2023, but 

she was only entitled to compensation for one day during this period, which wasJanuary 29, 2023. 

Thus, she was overpaid during the 27-day period covering January 30 through February 25, 2023. 

The amount appellant received for the 28-day period was $3,262.29. OWCP calculated that her 

daily rate of compensation for this period was $116.51. For the period of overpayment, appellant

therefore received a $3,145.78 overpayment of compensation. It made the preliminary finding that 

she was without fault in the creation of the overpayment, as less than 30 days had elapsed since 

the electronic funds transfer (EFT) deposit was made, which did not allow her ample time to 

receive and review a statement from her financial institution showing the details of the improper 

payment. OWCP requested that appellant complete an enclosed overpayment recovery 

questionnaire (Form OWCP-20) and submit supporting financial documentation, including copies 

of income tax returns, bank account statements, bills, pay slips, and any other records to support 

her reported income, assets, and expenses. It advised her that failure to submit the requested 

information within 30 days would result in the denial of waiver and no further request would be 

considered until the requested information was received. Additionally, OWCP provided an 

overpayment action request form and notified appellant that within 30 days of the date of the letter, 

she could request a decision based on the written record or a prerecoupment hearing.

In a completed overpayment action request form dated March 24, 2023, appellant

requested that OWCP make a decision based on the written evidence regarding possible waiver of 

the overpayment. She requested waiver of recovery of the overpayment, explaining that during 

the time she received wage-loss compensation, she withdrew $17,000.00 from the Thrift Savings 

Program (TSP) to pay her mortgage and bills as her compensation payments were incorrect.

Appellant attached supporting documentation. In an attached Form OWCP-20, appellant advised 

that her total monthly income was $4,100.00. She further advised that her monthly expenses 

totaled $4,220.00. Appellant indicated that she had total assets of $270.00.
3

By letter dated April 17, 2023, OWCP advised that it had received her March 24, 2023 

overpayment action request form and Form OWCP-20. It noted that while it had received financial 

information, it lacked supporting financial documentation. OWCP afforded appellant an 

additional 15 days to provide financial information in support of her request for waiver. 

On May 8, 2023 OWCP received appellant’s April 28, 2023 reply to OWCP’s April 17, 

2023 letter. In an overpayment action request form, she once again requested that OWCP make a 

decision based upon the written evidence and requested waiver of recovery of the overpayment 

because she was found to be without fault in its creation. In an attached Form OWCP-20, appellant

advised that her monthly income totaled $4,350.00. She further advised that her total monthly 

expenses were $5,207.26. Appellant indicated that she had assets of $370.00 to $420.00. She 

attached numerous other documents including a TSP account statement, and credit card statements

noting account balances and monthly minimum due amounts. Appellant also submitted statements

supporting her mortgage payments, utility, insurance, and telephone bills.

By decision dated May 11, 2023, OWCP finalized its preliminary overpayment 

determination that appellant had received an overpayment of compensation in the amount of 

$3,145.78 for the period January 30 through February 25, 2023, because she returned to work on 

January 30, 2023, but continued to receive wage-loss compensation through February 25, 2023. It 

found that she was without fault in the creation of the overpayment, but denied waiver of recovery. 

It noted that she had not responded to its April 17, 2023 development letter.

LEGAL PRECEDENT -- ISSUE 1

Section 8102(a) of FECA2 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 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

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

same period.5 OWCP regulations provide that 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

ANALYSIS -- ISSUE 1

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

$3,145.78 for the period January 30 through February 25, 2023, for which she was without fault,

2

5 U.S.C. §§ 8101-8193.

3

Id. at § 8102(a).

4

Id. at § 8129(a).

5

See M.S., Docket No. 16-0289 (issued April21, 2016); D.B., Docket No. 15-0258 (issued February 1, 2016).

6

See C.V., Docket No. 16-0986 (issued September 1, 2016); 20 C.F.R. § 10.500.
4

because she continued to receive wage-loss compensation for total disability following her return 

to full-time work.

OWCP paid appellant wage-loss compensation on the supplemental and periodic rolls. The 

evidence reflects that appellant returned to work, full time, on January 30, 2023. However, she 

continued to receive wage-loss compensation through February 25, 2023. A claimant is not 

entitled to receive temporary total disability benefits and actual earnings for the same time period. 7 

Accordingly, the Board finds that appellant received an overpayment of compensation. 8

The record shows that OWCP calculated that, from January 30 through February 25, 2023, 

appellant received $3,145.78 in total net compensation, but was not entitled to any compensation 

during this time period. OWCP calculated that her daily rate of compensation for this period was 

$116.51. For the 27-day period of overpayment, she therefore received a $3,145.78 overpayment 

of compensation. The Board finds that OWCP properly determined that appellant received an 

overpayment of compensation in the amount of $3,145.78 for the period January 30 through 

February 25, 2023.

LEGAL PRECEDENT -- ISSUE 2

Section 8129(b) of FECA provides that 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 this subchapter or would be against 

equity and good conscience.9 No waiver of recovery of an overpayment is possible if the claimant 

is at fault in creating the overpayment.10

On the issue of fault 20 C.F.R. § 10.433(a) provides that an individual is with fault in the 

creation of an overpayment who: (1) made an incorrect statement as to a material fact which the 

individual knew or should have known to be incorrect; or (2) failed to furnish information which 

the individual knew or should have known to be material; or (3) with respect to the overpaid 

individual only, accepted a payment which the individual knew or should have been expected to 

know was incorrect.11

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 

7

Supra note 5.

8

J.M., Docket No. 17-1574 (issued February 8, 2018).

9

5 U.S.C. § 8129(b).

10 See A.C., Docket No. 22-0118 (issued December 15, 2022); B.R.,Docket No. 18-0339 (issued January24, 2019); 

Gregg B. Manston, 45 ECAB 344, 354 (1994).

11 20 C.F.R. § 10.433(a). See A.W., Docket No. 20-0448 (issued March 4, 2022); Kenneth E. Rush, 51 ECAB 116, 

118 (1999).
5

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.12

Even if an overpayment resulted from negligence by OWCP, this does not excuse the 

employee from accepting payment, which the employee knew or should have been expected to 

know she was not entitled.13

ANALYSIS -- ISSUE 2

The Board finds that the case is not in posture for decision regarding the issue of waiver of 

recovery of the overpayment.

In its March 15, 2023 preliminary overpayment determination, OWCP found that appellant 

was without fault in the creation of the $3,145.78 overpayment for the period January 30 through 

February 25, 2023. In the final overpayment decision dated May 11, 2023 OWCP also found 

appellant without fault in the creation of the overpayment, rendering her eligible for waiver of 

recovery of the overpayment.

OWCP, in its May 11, 2023 decision, noted that appellant had not responded to its April 17, 

2023 development letter. The evidence of record establishes, however, that on May 8, 2023, 

OWCP received appellant’s April 28, 2023 reply. In an overpayment action request form, she 

once again requested that OWCP make a decision based upon the written evidence and requested 

waiver of recovery of the overpayment because she was found to be without fault in its creation. 

In an attached Form OWCP-20, appellant advised that her monthly income totaled $4,350.00. She 

further advised that her total monthly expenses were $5,207.26. Appellant indicated that she had 

assets of $370.00 to $420.00. She attached numerous other documents including a TSP account 

statement, and credit card statements noting account balances and monthly minimum due amounts. 

Appellant also submitted statements supporting her mortgage payments, utility, insurance, and 

telephone bills.

In the case of William A. Couch,

14 the Board held that, when adjudicating a claim, OWCP 

is obligated to review all evidence properly submitted by a claimant and received by OWCP before 

the final decision is issued. As the Board’s decisions are final as to the subject matter appealed,15

it is crucial that all evidence relevant to that subject matter which was properly submitted to OWCP 

prior to the time of issuance of its final decision be considered and addressed.16

The case must therefore be remanded so that OWCP may fully consider and address the 

evidence that was properly submitted by appellant prior to the issuance of this decision, regarding 

12 Id. at § 10.433(b).

13 A.W., supra note 11; Diana L. Booth, 52 ECAB 370 (2001).

14 41 ECAB 548 (1990); F.A., Docket No. 20-1324 (issued March 1, 2021); T.G., Docket No. 19-1930 (issued 

January 8, 2021).

15 Id. at § 501.6(c).

16 See William A. Couch, supra note 14.
6

the issue of waiver of recovery of the overpayment.17 Following this and other such further 

development as deemed necessary, OWCP shall issue a de novo decision.18

CONCLUSION

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

of compensation in the amount of $3,145.78 for the period January 30 through February 25, 2023, 

for which she was without fault, because she continued to receive wage-loss compensation for 

total disability following her return to full-time work. The Board further finds that the case is not 

in posture for decision regarding the issue of waiver of recovery of the overpayment.

ORDER

IT IS HEREBY ORDERED THAT the May 11, 2023 decision of the Office of Workers’

Compensation Programs is affirmed in part and set aside in part, and the case is remanded for 

further proceedings consistent with this decision of the Board.

Issued: October 13, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

17 M.P., Docket No. 16-1325 (issued November 2, 2016).

18 J.B., Docket No. 11-2005 (issued July 23, 2012).