United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.W., Appellant

and

U.S. POSTAL SERVICE, NORTH HOUSTON 

PROCESSING & DISTRIBUTION CENTER, 

North Houston, TX, Employer

__________________________________________

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Docket No. 22-1155

Issued: January 19, 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 July 28, 2022 appellant filed a timely appeal from a May 2, 2022 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 $8,730.32 during the period December 7, 2021 through February 26, 2022 because she 

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

full-time work; and (2) whether OWCP properly determined that appellant was at fault in the 

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

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On August 5, 2011 appellant, then a 36-year-old mail handler, filed a traumatic injury claim 

(Form CA-1) alleging that, on that date, she sustained a contusion and bruises with skin intact on 

her right ankle when she was struck by an over the road container (OTR) while in the performance 

of duty. She stopped work on the date of injury.

On September 26, 2011 OWCP accepted appellant’s claim for left ankle sprain. 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.

“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 EFT deposits 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 as of 

September 19, 2011 and on the periodic rolls effective February 12, 2012. Appellant received 

wage-loss compensation by EFT payments.

A memorandum of telephone call (Form CA-110) on February 2, 2022 indicated that 

appellant notified OWCP that she had returned to work. She advised that the employing 

establishment had not notified OWCP about her return to work because she had received another 

compensation “check.”

By letter dated February 2, 2022, OWCP requested that the employing establishment 

provide information regarding appellant’s salary and work schedule for her alternate/new position.

In response, the employing establishment provided information regarding appellant’s 

salary. It provided a copy of its December 7, 2021 job offer for a full-time, modified mail handler 

position with restrictions, which appellant accepted on that day.

The record indicates that on January 1, 2022 the EFT payment for the period December 5, 

2021 through January 1, 2022 was deposited into appellant’s bank account in the net amount of 

$3,000.52. On January 29, 2022 the EFT payment for the period January 2 through 29, 2022 was 

deposited into appellant’s bank account in the amount of $2,972.06. On February 26, 2022 the 

EFT payment for the period January 30 through February 26, 2022 was deposited into appellant’s 

bank account in the amount of $2,972.06.

In a preliminary overpayment determination dated March 7, 2022, OWCP notified 

appellant that she had received an overpayment of compensation in the amount of $ 8,730.32 for 

the period December 7, 2021 through February 26, 2022 because she returned to full-time 
3

modified employment on December 7, 2021, but received wage-loss compensation for total 

disability through February 26, 2021. It related that she was receiving a net compensation payment 

every 28 days in the amount of $3,000.52 for the period December 5, 2021 through January 1, 

2022 and $2,972.06 for each period from January 2 through 29, 2022 and January 30 through 

February 26, 2022. OWCP then calculated that $3,000.52 divided by 28 days and then multiplied 

by 26 days which equaled $2,786.20 for the period December 7, 2021 through January 1, 2022, 

and $2,972.06 for each period from January 2 through 29, 2022 and January 30 through 

February 26, 2022, resulting in a total overpayment of $8,730.32. It further advised appellant of 

its preliminary determination that she was at fault in the creation of the overpayment because she 

had received a compensation payment deposited by EFT and over 30 days had elapsed since the

EFT deposit was made, allowing ample time for her to receive and review a statement from her 

financial institution showing the details of an improper payment. OWCP requested that she 

complete an overpayment action request form and an 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 appellant that within 30 days, she could request a final 

decision based on the written evidence, or a prerecoupment hearing.

In a Form CA-110 dated March 24, 2022, appellant asked OWCP if she had to complete 

the Form OWCP-20. OWCP responded that it would be a good idea to complete the Form 

OWCP-20 but, advised her that she did not have to do so. Appellant contended that she was 

without fault in the creation of the overpayment. She related that she still had “two compensation 

checks.” OWCP advised appellant to return the compensation checks and that they would be 

applied to the overpayment.

By decision dated May 2, 2022, OWCP finalized the March 7, 2022 preliminary 

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

the amount of $8,730.32 for the period December 7, 2021 through February 26, 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.2 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.3

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 

2

Id. at § 8102(a).

3

Id. at § 8129(a).
4

receive salary, pay, or remuneration of any type from the United States, except in limited specified 

instances.4 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.5 A 

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

same time period.6 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 temporary 

total disability.

7

ANALYSIS -- ISSUE 1

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

$8,730.32 during the period December 7, 2021 through February 26, 2022 because she continued 

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

work.

Appellant resumed full-time modified-duty employment on December 7, 2021. OWCP, 

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

work through February 26, 2022. As noted above, a claimant is not entitled to receive 

compensation for disability during a period in which she had actual earnings. 8 Therefore, an

overpayment of compensation was created in this case.

OWCP calculated appellant’s net compensation paid for the period December 7, 2021 

through February 26, 2022 as $8,730.32. The Board finds that OWCP properly calculated that she 

received an overpayment of compensation in the amount of $8,730.32 for the period December 7, 

2021 through February 26, 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 subchap ter or would be 

4

Id. at § 8116(a).

5

20 C.F.R. § 10.500(a).

6

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).

7

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).

8

See supra note 6.
5

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

claimant is at fault in the creation of 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; (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 

regulations provides 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 

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

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. 13 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.14

ANALYSIS -- ISSUE 2

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

period December 7, 2021 through January 1, 2022, and that she was at fault in the creation of the 

overpayment for the period January 2 through February 26, 2022.

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

returned to full-time, modified-duty work on December 7, 2021. The first direct deposit she 

received after her return to work was made on January 1, 2022. There is no documentation or 

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

9

5 U.S.C. § 8129(b).

10 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).

11 20 C.F.R. § 10.433(a).

12 Id. at § 10.433(b); see also R.G., supra note 10;D.M.,Docket No. 17-0983 (issued August 3, 2018).

13 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).

14 Id.
6

January 1, 2022 direct deposit that the payment was incorrect.15 The Board thus finds that she was 

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

December 7, 2021 through January 1, 2022.

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

waiver of recovery of the overpayment for the period December 7, 2021 through January 1, 2022. 

The Board will set aside the May 2, 2022 decision regarding the issue of fault as to the January 1, 

2022 direct deposit covering the period December 7, 2021 through January 1, 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 December 7, 2021 through January 1, 2022.

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

remaining direct deposit payments for the period January 2 through February 26, 2022.

16

In a September 26, 2011 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. 17 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.

18

 By the time of the 

second and third payments, 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 

December 7, 2021.

19

 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 she was at fault in the creation of the overpayment from 

January 2 to February 26, 2022, thereby precluding waiver of the overpayment.

CONCLUSION

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

$8,730.32 during the period December 7, 2021 through February 26, 2022. The Board further 

finds that appellant was withoutfault in the creation of the overpaymentfor the period December 7, 

15 M.T., supra note 13; C.C., Docket No. 18-1268 (issued April 2, 2021); K.P., Docket No. 19-1151 (issued

March 18, 2020); K.K., 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 7.

16 M.T., C.C.,K.P., K.K., C.Y., id.; D.W.,Docket No. 15-0229 (issued April17, 2014).

17 M.T., K.P., K.K., id.; C.G.,Docket No. 15-0701 (issued December 9, 2015).

18 Supra note 14.

19 Supra note 17.
7

2021 through January 1, 2022, and that she was at fault in the creation of the overpayment for the 

period January 2 through February 26, 2022. The case will be remanded to OWCP to consider 

waiver of recovery of the overpayment for the period December 7, 2021 through January 1, 2022.

ORDER

IT IS HEREBY ORDERED THAT the May 2, 2022 decision of the Office of Workers’

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

proceedings consistent with this decision of the Board.

Issued: January 19, 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