United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.L., Appellant

and

U.S. POSTAL SERVICE, GREEN RIVER POST 

OFFICE, Green River, WY, Employer

__________________________________________

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Docket No. 23-0424

Issued: December 28, 2023

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 February 3, 2023 appellantfiled a timely appealfroma January 11,2023merit 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 $3,008.33, during the period July 30 through September 10, 2022, because she 

continued to receive wage-loss compensation for total disability after she returned to full-time 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the January 11, 2023decision, OWCP received additional evidence. 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

work; and (2) whether OWCP properly determined that she was at fault in the creation of the 

overpayment, thereby precluding waiver of recovery of the overpayment.

FACTUAL HISTORY

On February 17, 2022 appellant, then a 45-year-old city carrier assistant, filed a traumatic 

injury claim (Form CA-1) alleging that on February 2, 2022 she injured three ribs, experienced 

numbness in her right arm and hand, and pinched a nerve in her right upper back when she pushed 

a cage into doors that had unexpectedly locked while in the performance of duty. She explained

that. Appellant stopped work on February 3, 2022. 

By decision dated April 18, 2022, OWCP accepted appellant’s claim for carpal tunnel 

syndrome, left and right upper limbs, and lesion of ulnar nerve, right upper limb. It instructed her

to return any checks that included a payment for a period in which she had worked immediately to 

avoid an overpayment of compensation. OWCP further stated:

“If you receive compensation via Electronic Funds Transfer (EFT), a notification 

of the date and amount of payment will appear on the statement from your financial 

institution. You are expected to monitor your EFTdeposits carefully, at least every 

2 weeks. If you have worked for any portion of the period for which a deposit was 

made, advise OWCP immediately so that the overpayment can be collected.”

Thereafter, OWCP paid appellant wage-loss compensation on the supplemental rolls from 

March 20 through May 21, 2022, and on the periodic rolls effective May 22, 2022. She received 

all wage-loss compensation by EFT payments.

On August 13, 2022 OWCP issued an EFT payment for the period July 17 through 

August 13, 2022 in the net amount of $1,958.91. On September 10, 2022itissued an EFT payment 

for the period August 14 through September 10, 2022 in the net amount of $1,958.91.

An August 19, 2022 report of work status (Form CA-3) indicated that appellant had 

returned to work on July 27, 2022 with restrictions. 

A September 9, 2022 field nurse memorandum related that appellant had returned to fulltime light-duty work on July 30, 2022.

In a September 14, 2022 memorandum of telephone call (Form CA-110), OWCP indicated 

that appellant reported that she had returned to work on July 30, 2022. 

In an October 19, 2022 preliminary overpayment determination, OWCP notified appellant 

that she had received an overpayment of compensation of $3,008.33,for the period July 30through 

September 10, 2022, because she returned to work full time on July 30, 2022, but continued to 

receive wage-loss compensation through September 10, 2022. It determined that she received 

$1,958.91 in compensation for the period July 17 through August 13, 2022, and another $1,958.91 

for the period August 14 through September 10, 2022. OWCPthen deducted $909.49, the amount 

that appellantwas due for the period July 17 through July 29, 2022, which it calculated by dividing 

$1,958.91 by 28 days and then multiplying by 13, the number of days that she was entitled to be 

paid from July 17 through 29, 2022. The result of $1,958.91 plus $1,958.91 minus $909.49 
3

equaled $3,008.33, the amount that appellant was overpaid for the period July 30 through 

September 10, 2022. OWCP further advised her of its preliminary overpayment determination 

that she was at fault in the creation of the overpayment because she had received a compensation 

payment deposited by EFT and ample time had elapsed since the EFT deposit for her to receive 

and review a statement from her financial institution showing the details of an improper payment. 

It requested that appellant complete an overpayment action request form and 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 income and expenses. Additionally, OWCP informed her that, within 30 days, 

she could request a final decision based on the written evidence or a prerecoupment hearing. It

mailed the preliminary overpayment determination to appellant’slast known address of record and

afforded her 30 days to respond. No response was received. 

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

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

$3,008.33 for the period July 30 through September 10, 2022 and that she was at fault in the 

creation of the overpayment, thereby precluding waiver of recovery of the overpayment. It 

directed recovery of the overpayment in full. 

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 

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 benefits and actual earnings for the 

same time period.

7

 OWCP’s procedures provide that an overpayment of compensation is created 

3

Supra note 1 at § 8102(a).

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);

C.H., Docket No. 19-1470 (issued January 24, 2020); L.S., 59 ECAB 350, 352-53 (2008).
4

when a claimant returns to work, but continues to receive wage-loss compensation for temporary 

total disability.

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ANALYSIS -- ISSUE 1

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

$3,008.33during the period July 30 through September 10, 2022, because she continued to receive 

wage-loss compensation for total disability after she returned to full-time work.

Appellant resumed full-time modified-duty employment on July 30, 2022. OWCP, 

however, continued to pay her wage-loss compensation for total disability following her return to 

work through September 10, 2022. As noted above, a claimant is not entitled to receive 

compensation for disability during a period in which she had actual earnings.

9

 Therefore, an

overpayment of compensation was created in this case.

OWCP calculated appellant’s net compensation paid for the period July 30 through 

September 10, 2022 as $3,008.33. It explained how it calculated the amount of the overpayment. 

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

compensation in the amount of $3,008.33 for the period July 30 through September 10, 2022.

LEGAL PRECEDENT -- ISSUE 2

Section 8129(b) of FECA provides as follows 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.

10

 No waiver of recovery of an overpayment is possible if the 

claimant is at fault in the creation of the overpayment.

11

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; (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.

12

With respect to whether an individual is without fault, section 10.433(b) of OWCP 

regulations provides that whether or not OWCP determines that an individual was at fault with 

8

S.S., L.T., C.H., id.; Federal (FECA) Procedure Manual, Part 6 --Debt Management, Identifying and Calculating 

an Overpayment, Chapter 6.200.1a (September 2020).

9

See supra note 7.

10 5 U.S.C. § 8129(b).

11 S.S.,Docket No. 20-0776 (issued March 15, 2021); B.W.,Docket No. 19-0239 (issued September 18, 2020);

R.G., Docket No. 18-1251 (issued November 26, 2019); C.L., Docket No. 19-0242 (issued August 5, 2019).

12 20 C.F.R. § 10.433(a).
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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.

13

The Board has held that an employee who receives payments from OWCP in the form of 

a direct deposit may not be at fault the first time incorrect funds are deposited into his or her 

account, as the acceptance of the resulting overpayment lacks the requisite knowledge.14 The 

Board has also held in cases involving a series of incorrect payments, where the requisite 

knowledge is established by a letter or telephone call from OWCP, or simply with the passage of 

time and a greater opportunity for discovery, the claimant will be at fault for accepting the 

payments subsequently deposited.15

ANALYSIS -- ISSUE 2

The Board finds that appellant was without fault in the creation of the overpayment for the 

period July 30 through August 13, 2022, and that she was at fault in the creation of the 

overpayment for the period August 14 through September 10, 2022.

OWCP paid appellant compensation by direct deposit every 28 days. As noted, appellant 

returned to full-time, modified-duty work on July 30, 2022. OWCP issued the first direct deposit 

she received after her return to work on August 13, 2022. There is no documentation or other 

evidence to demonstrate that appellant had clear knowledge at the time her bank received the 

August 13, 2022 direct deposit that the payment was incorrect.16 The Board thus finds that she 

was without fault in accepting the initial direct deposit covering the period of the overpayment 

from July 30 through August 13, 2022.

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

waiver of recovery of the overpaymentfor the period July 30 through August 13, 2022. The Board 

will reverse the January 11, 2023 decision regarding the issue of fault as to the August 13, 2022 

direct deposit covering the period July 30 through August 13, 2022 and will remand the case for 

OWCP to determine whether appellant is entitled to waiver of recovery for the portion of the

overpayment covering the period July 30 through August 13, 2022.

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

14 L.W., Docket No. 22-1155 (issued January 19, 2023); M.T.,Docket No. 20-1353 (issued May 9, 2022);

C.H., Docket No. 19-1470 (issued January 24, 2020). See Tammy Craven, 57 ECAB 689 (2006); see also 

A.B., Docket No. 18-0922 (issued January 3, 2019).

15 Id.

16 M.T., supra note 14; C.C.,Docket No. 18-1268 (issued April2, 2021); K.P.,Docket No. 19-1151 (issued 

March 18, 2020); K.K.,Docket No. 19-0978 (issued October 21, 2019); C.Y., Docket No. 18-0263 (issued 

September 14, 2018); see also M.M., Docket No. 15-0265 (issued May 27, 2015); Danny E. Haley, 56 ECAB 393 

(2005); Federal (FECA) Procedure Manual, supra note 8.
6

The Board also finds that appellant was at fault in the creation of the overpayment for the 

remaining direct deposit payment for the period August 14 through September 10, 2022.17

In an April 18, 2022 letter, OWCP notified appellant that to avoid an overpayment of 

compensation, she must immediately notify it of her return to work. Appellant was required to 

reimburse OWCP for compensation paid during a period in which she worked. Although OWCP 

may have been negligent in making incorrect payments, this does not excuse a claimant from 

accepting payments he or she knew or should have known to be incorrect.18 As noted above, in 

cases involving a series of incorrect payments, where the requisite knowledge is established by 

documentation from OWCP or simply with the passage of time and opportunity for discovery, a 

claimant will be at fault for accepting the payments subsequently deposited.19 By the time of the 

second payment, appellant should have known that she was not entitled to the same amount of 

wage-loss compensation as she had received prior to her return to work on July 30, 2022.20 After 

her receipt of the first direct deposit following her return to work, she was on notice that OWCP 

began to make payments to her in error and knew or should have known that she was not entitled 

to the benefits of the subsequent direct deposits. The Board therefore finds that OWCP properly 

found that appellant was at fault in the creation of the overpayment from August 14 through

September 10, 2022, thereby precluding waiver of the overpayment.

CONCLUSION

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

$3,008.33 during the period July 30 through September 10, 2022. The Board further finds that she

was without fault in the creation of the overpayment for the period July 30 through August 13, 

2022, and that she was at faultin the creation of the overpaymentfor the period August 14 through 

September 10, 2022. The case will be remanded to OWCP to consider waiver of recovery of the

overpayment for the period July 30 through August 13, 2022.

17 M.T., C.C., id.; D.W., Docket No. 15-0229 (issued April 17, 2014).

18 L.W., supra note 14; M.T., id.; C.G., Docket No. 15-0701 (issued December 9, 2015).

19 Supra note 15.

20 Supra note 18.
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ORDER

IT IS HEREBY ORDERED THAT the January 11, 2023 decision of the Office of 

Workers’ Compensation Programs is reversed in part, affirmed in part, and set aside in part; the 

case is remanded for further proceedings consistent with this decision of the Board.

Issued: December 28, 2023

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