United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.L., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS AND BORDER PROTECTION, 

Glynco, GA, Employer

__________________________________________

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Docket No. 23-0149

Issued: July 13, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On November 9, 2022 appellant filed a timely appeal from November 3 and 7, 2022 merit 

decisions 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 $1,078.68 for the period August 29 through September 10, 2022, for which she was 

without fault, as she continued to receive total disability compensation following her return to fulltime modified-duty work; (2) whether OWCP properly denied waiver of recovery of the 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that,following the issuance of the November 7, 2022 decision, OWCP received additional 

evidence. However, the Board’s Rules of Procedureprovides: “The Board’s review of a case is limited to the evidence 

that was before OWCP at the time of its final decision. Evidence not before the 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 new 

evidence for the first time on appeal. Id.
2

overpayment; and (3) whether appellant has met her burden of proof to establish disability from 

work for the period September 8 through 12, 2022, causally related to her accepted October 20, 

2021 employment injury.

FACTUAL HISTORY

On October 26, 2021 appellant, then a 25-year-old customs and border protection officer, 

filed a traumatic injury claim (Form CA-1) alleging that on October 20, 2021 her left knee popped 

when she performed frog jumps during a training session while in the performance of duty. She 

did not stop work. 

On March 2, 2022 OWCP accepted the claim for buckle handle tear of the medial meniscus 

of the left knee. It advised appellant that:

“If you receive a compensation check which includes payment for a period you 

have worked, return it to us immediately to prevent an overpayment of 

compensation. Checks may be returned to the following address: US Department 

of Treasury, 13000 Townsend Road, Philadelphia, PA 19154.”

OWCP subsequently paid appellant wage-loss compensation on the supplemental rolls for 

disability from work for the periods December 27, 2021 through March 18, 2022 and March 22 

through April 14, 2022.

On April 28, 2022 OWCP expanded the acceptance of appellant’s claim to include left 

knee effusion. It paid her wage-loss compensation on the supplemental rolls for the period 

April 15 through May 7, 2022. 

On June 22, 2022 appellant underwent OWCP-authorized left knee arthroscopy with 

partial medial and lateral meniscectomy with synovectomy.

OWCP thereafter paid appellant on the supplemental rolls from June 17through 18, 2022, 

and on the periodic rolls as of June 19, 2022. 

On August 25, 2022 appellant’s treating physician, Dr. Jonathan J. Meyer, a Boardcertified orthopedic surgeon, released appellant to return to sedentary work as of August 25, 2022,

for the next six weeks. Appellant returned to full-time modified-duty work with restrictions on 

August 29, 2022. In an August 25, 2022 progress note, Dr. Myer noted a history of the October 20, 

2021 employment injury and appellant’s medical treatment. He reported his findings on physical 

examination and reviewed diagnostic test results of the left knee. Dr. Myer provided an assessment 

of the accepted condition of bucket handle tear of the medial meniscus of the left knee. He also 

provided an assessment of left knee pain. Dr. Myer indicated that appellant experienced left knee 

pain after a reported patella dislocation in October 2021. He advised that she was status post her 

October 2021 work-related injury.

OWCP subsequently received a September 9, 2022 certificate of injury and/or return to 

work from Dr. Myer. Dr. Myer noted that appellant was unable to return to work from 

September 8 through 12, 2022 due to an injury.

On September 12, 2022 appellant filed a claim for wage-loss compensation (Form CA-7) 

due to disability from work for the period September 8 through 12, 2022.
3

OWCP, by development letter dated September 19, 2022, advised appellant that the 

medical evidence submitted was insufficient to establish disability for the period September 8 

through 12, 2022. It requested that she submit additional medical evidence to establish that she 

was unable to work during the period claimed due to her October 20, 2021 employment injury. 

OWCP afforded appellant 30 days to submit the necessary evidence.

In a preliminary overpayment determination dated September 30, 2022, OWCP notified 

appellant that she had received an overpayment of compensation in the amount of $1,078.68 for 

the period August 29 through September 10, 2022 because she received compensation for total 

disability after she returned to full-time work on August 29, 2022. It explained that appellant 

received $2,323.32 every 28 days at a daily rate of $82.9757. OWCP further noted that appellant 

had received compensation for 13 days following her medical release and return to work for a total 

of $1,078.68. It further advised her of its preliminary determination that she was without fault in 

the creation of the overpayment. OWCP requested that appellant complete an overpayment action 

request form and an overpayment recovery questionnaire (Form OWCP-20). Additionally, it 

notified her that within 30 days of the date of the letter, she could request a final decision based 

on the written evidence, or a prerecoupment hearing.

On November 2, 2022 OWCP received appellant’s request for OWCP’s review of the 

written evidence regarding possible waiver of the overpayment. Appellant also submitted a Form 

OWCP-20 dated October 20, 2022, in which she requested waiver of the overpayment as she had 

fallen behind on her monthly bills. She listed monthly income of $2,934.00 and monthly expenses 

totaling $3,627.00, and assets in the amount of $200.00. Appellant also submitted supporting 

documentation including Internal Revenue Service forms and credit card statements.

By decision dated November 3, 2022, OWCP finalized the September 30, 2022 

preliminary overpayment determination that appellant had received an overpayment of 

compensation in the amount of $1,078.68 for the period August 29 through September 10, 2022 

because she continued to receive FECA wage-loss compensation after her return to full-time work 

on August 29, 2022. It determined that she was without fault in the creation of the overpayment

but, denied waiver of recovery of the overpayment as she had not responded to the September 30, 

2022 preliminary overpayment determination. OWCP directed recovery of the overpayment in 

full within 30 days.

By decision dated November 7, 2022, OWCP denied appellant’s claim for compensation 

for disability from work for the period September 8 through 12, 2022, finding that the medical 

evidence of record was insufficient to establish disability during the claimed period due to her 

October 20, 2021 employment injury.

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.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 

3

5 U.S.C. § 8102(a).
4

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 temporary total disability (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 

$1,078.68 for the period August 29 through September 10, 2022, for which she was without fault, 

as she continued to receive total disability compensation following her return to full-time 

modified-duty work.

Based on Dr. Myer’s August 25, 2022 release to sedentary work, appellant resumed fulltime modified-duty employment on August 29, 2022. OWCP, however, continued to pay her 

wage-loss compensation for TTD following her return to work through September 10, 2022, which 

resulted in an overpayment of compensation. Therefore, an overpayment of compensation was 

created in this case.

OWCP calculated appellant’s net compensation paid for the period August 29 through 

September 10, 2022 as $1,078.68. The Board finds that she received an overpayment of 

compensation in the amount of $1,078.68 for the period August 29 through September 10, 2022.

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA provides that an individual who is without fault in creating or 

accepting an overpayment is still subject to recovery of the overpayment unless adjustment or

4

Id. at § 8129(a).

5

Id. at § 8116(a).

6

20 C.F.R. § 10.500(a).

7

See S.S., Docket No. 20-0776 (issued March 15, 2021); L.T., Docket No. 19-1389 (issued March 27, 2020); K.P.,

Docket No. 19-1151 (issued March 18, 2020); C.H., Docket No. 19-1470 (issued January 24, 2020); L.S., 59 ECAB 

350, 352-53 (2008).

8 Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Identifying and Calculating an Overpayment, 

Chapter 6.200.1(a) (September 2018); see also S.S., id.; L.T., id.; K.P., id.; C.H., id.
5

recovery would defeat the purpose of FECA or would be against equity and good conscience.9 

Thus, a finding that appellant was without fault does not automatically result in waiver of the 

overpayment, OWCP must then exercise its discretion to determine whether recovery of the 

overpayment would defeat the purpose of FECA or would be against equity and good conscience.10

Recovery of an overpayment would defeat the purpose of FECA if such recovery would 

cause hardship because the beneficiary from whom OWCP seeks recovery needs substantially all 

of his or her current income (including compensation benefits) to meet current ordinary and 

necessary living expenses and, also, if the beneficiary’s assets do not exceed a specified amount 

as determined by OWCP.11 Additionally, recovery of an overpayment is considered to be against 

equity and good conscience when an individual who received an overpayment would experience 

severe financial hardship in attempting to repay the debt or when an individual, in reliance on such 

payment or on notice that such payments would be made, gives up a valuable right or changes his 

or her position for the worse.12

OWCP’s regulations provide 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. The information is also used to 

determine the repayment schedule, if necessary.13 Failure to submit the requested information 

within 30 days of the request will result in a denial of waiver of recovery, and no further request 

for waiver shall be considered until the requested information is furnished. 14

ANALYSIS -- ISSUE 2

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

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. 15 Appellant had the 

responsibility to provide the appropriate financial information to OWCP.16 OWCP found that she

had not responded to the preliminary overpayment determination dated September 30, 2022. 

9

5 U.S.C. § 8129(a)-(b).

10 See D.B., Docket No. 21-0009 (issued June 7, 2021); R.Q., Docket No. 18-0964 (issued October 8, 2019); S.J.,

Docket No. 09-370 (issued August 18, 2009).

11 20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base 

increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional 

dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, 

Chapter 6.400.4a(2) (September 2020).

12 Id. at § 10.437(a)(b).

13 Id. at § 10.438(a).

14 Id. at § 10.438(b).

15 Id.; see also supra note 11.

16 Id.
6

However, on November 2, 2022, it did receive appellant’s October 20, 2022 request for waiver of 

the overpayment, and the OWCP-20 form wherein she listed her monthly income, expenses, and 

assets. Appellant also attached supporting documentation. 

In the case of William A. Couch,

17 the Board held that when adjudicating a claim, OWCP 

is obligated to consider and address all evidence properly submitted by a claimant and received by 

OWCP before the final decision is issued. OWCP, however, did not consider and address this 

additional evidence in its November 3, 2022 decision. It, thus, failed to follow its procedures by 

not considering and addressing all of the relevant evidence of record.18

As Board decisions are final with regard to the subject matter appealed, it is crucial that 

OWCP consider and address all relevant evidence received prior to the issuance of its final 

decision.19 The Board finds that this case is not in posture for decision, as OWCP did not consider 

and address the above-noted evidence in its November 3, 2022 decision.20 On remand, following 

any such other further development as deemed necessary, OWCP shall issue a de novo decision 

on the issue of waiver of recovery of the overpayment.

LEGAL PRECEDENT -- ISSUE 3

An employee seeking benefits under FECA21 has the burden of proof to establish the 

essential elements of his or her claim, including that any disability or specific condition for which 

compensation is claimed is causally related to the employment injury.

22

 Under FECA, the term 

disability means incapacity, because of an employment injury, to earn the wages that the employee 

was receiving at the time of injury.23 For each period of disability claimed, the employee has the 

burden of proof to establish that he or she was disabled from work as a resu lt of the accepted 

employment injury.24

Whether a particular injury causes an employee to become disabled from work and the 

duration of that disability, are medical issues that must be proven by a preponderance of the 

17 41 ECAB 548 (1990); see K.B.,Docket No. 20-1320 (issued February 8, 2021); see also R.D.,Docket No. 17-

1818 (issued April 3, 2018).

18 OWCP’s procedures provide that all evidence submitted should be reviewed and discussed in the decision. 

Evidence received following development that lacks probative value also should be acknowledged. Whenever 

possible, the evidence should be referenced by author and date. Federal (FECA) Procedure Manual, Part 2 --Claims, 

Initial Denials, Chapter 2.1401.5b(2) (November 2012).

19 E.D., Docket No. 20-0620 (issued November 18, 2020); see C.S.,Docket No. 18-1760 (issued November 25, 

2019); Yvette N. Davis, 55 ECAB 475 (2004); see also William A. Couch, supra note 17.

20 D.S.,Docket No. 20-0589 (issued November 10, 2020);see V.C.,Docket No. 16-0694 (issued August19, 2016).

21 Supra note 1.

22 See C.B., Docket No. 20-0629 (issued May 26, 2021); D.S., Docket No. 20-0638 (issued November 17, 2020); 

F.H., Docket No. 18-0160 (issued August 23, 2019); C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn 

Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989). 

23 20 C.F.R. § 10.5(f); J.S., Docket No. 19-1035 (issued January 24, 2020).

24 T.W., Docket No. 19-1286 (issued January 13, 2020).
7

reliable, probative, and substantial medical evidence.25 The medical evidence required to establish 

causal relationship between a claimed period of disability and an employment injury is rationalized 

medical opinion evidence. The opinion of the physician must be based on a complete factual and 

medical background of the claimant, must be one of reasonable medical certainty, and must be 

supported by medical rationale explaining the nature of the relationship between the claimed 

disability and the specific employment factors identified by the claimant.26

The Board will not require OWCP to pay compensation for disability in the absence of 

medical evidence directly addressing the specific dates of disability for which compensation is 

claimed. To do so, would essentially allow an employee to self-certify his or her disability and 

entitlement to compensation.27

ANALYSIS -- ISSUE 3

The Board finds that appellant has not met her burden of proof to establish disability from 

work for the period September 8 through 12, 2022, causally related to her accepted October 20, 

2021 employment injury.

In support of her claim for compensation, appellant submitted medical evidence from her 

attending physician, Dr. Myer. Dr. Myer had released her to return to sedentary work as of 

August 25, 2022 and she did return to work on August 29, 2022. In a September 9, 2022 certificate 

of injury and/or return to work, he advised that appellant was unable to return to work from 

September 8 through 12, 2022 due to an injury. Although Dr. Myer opined that she was disabled 

during the claimed period, he failed to provide a diagnosis and objective medical findings in 

support of her claimed disability.28 He failed to explain how the October 20, 2021 employment 

injury was responsible for her disability, and why she was unable to perform the duties of her 

position during the period claimed. The Board has held that a report is of limited probative value 

regarding causal relationship if it does not contain medical rationale explaining how a given 

medical condition/period of disability has an employment-related cause.29 For these reasons,

Dr. Myer’s disability certificate is insufficient to establish appellant’s disability claim.

As was noted above, for each period of disability claimed, the employee has the burden of 

proof to establish that he or she was disabled from work during the claimed period due to the 

accepted employment injury.30 Because appellant has not submitted rationalized medical opinion 

25 A.S., Docket No. 20-0406 (issued August 18, 2021); Amelia S. Jefferson, 57 ECAB 183 (2005).

26 T.L., Docket No. 20-0978 (issued August 2, 2021); V.A., Docket No. 19-1123 (issued October 29, 2019).

27 See C.T., Docket No. 20-0786 (issued August 20, 2021); M.J., Docket No. 19-1287 (issued January 13, 2020); 

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

28 E.B., Docket No. 19-1390 (issued May 7, 2020); K.D.,Docket No. 19-0628 (issued November 5, 2019); A.T., 

Docket No. 19-0410 (issued August 13, 2019); see Terry R. Hedman, 38 ECAB 222 (1986).

29 See R.H., Docket No. 22-0140 (issued August12, 2022);T.S., Docket No. 20-1229 (issued August6, 2021); S.K., 

Docket No. 19-0272 (issued July 21, 2020); T.T.,Docket No. 18-1054 (issued April8, 2020); Y.D., Docket No. 16-

1896 (issued February 10, 2017).

30 Supra note 28.
8

evidence to establish employment-related total disability during the claimed period due to her 

accepted conditions, the Board finds that she has not met her burden of proof to establish her claim.

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

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

$1,078.68 for the period August 29 through September 10, 2022, for which she was without fault, 

as she continued to receive total disability compensation following her return to full-time 

modified-duty work. The Board further finds that the case is not in posture for decision regarding 

waiver of recovery of the overpayment. Lastly, the Board finds that appellant has not met her 

burden of proof to establish disability from work for the period September 8 through 12, 2022, 

causally related to her accepted October 20, 2021 employment injury.

ORDER

IT IS HEREBY ORDERED THAT the November 3, 2022 decision is affirmed in part 

and set aside in part. The case is remanded for further proceedings consistent with this decision 

of the Board. The November 7, 2022 decision of the Office of Workers’ Compensation Programs 

is affirmed.

Issued: July 13, 2023

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board