United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, CURSEEN-MORRIS
PROCESSING & DISTRIBUTION CENTER,
Washington, DC, Employer
__________________________________________

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)
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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 08-1197
Issued: November 24, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 17, 2008 appellant filed a timely appeal from a November 28, 2007 decision of
the Office of Workers’ Compensation Programs that found she received an overpayment of
compensation and a February 28, 2008 decision that established a repayment schedule. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant received an overpayment in compensation in the
amount of $13,048.35; (2) whether the Office properly determined that she was at fault in
accepting the overpayment and was therefore not entitled to waiver; and (3) whether the Office
properly required repayment at the rate of $250.00 per compensation period.
FACTUAL HISTORY
On June 10, 1990 appellant, then a 27-year-old letter sorter machine clerk, sustained a
right lower leg laceration and lumbosacral strain when she was hit by a robot wagon at work.

She stopped work that day and was placed on the periodic rolls. Appellant claimed one
dependent, a son, Clinton Lee Kilpatrick, III, who was born on November 28, 1984. By decision
dated June 30, 1993, her compensation benefits were terminated, effective July 25, 1993. In a
July 11, 1994 decision, an Office hearing representative reversed the termination. Appellant was
returned to the periodic rolls, effective the date of termination. By decision dated February 9,
1995, the Office again terminated appellant’s compensation benefits, effective March 5, 1995.
Appellant returned to four hours of limited duty daily on December 24, 1995 and received wageloss compensation for four hours daily. She again stopped work on August 16, 1996 and did not
return. Appellant was returned to the periodic rolls at the augmented rate and was paid by direct
deposit.
Beginning on December 8, 1992, appellant signed Office EN1032 forms, attesting that
her son was a dependent. She submitted forms dated August 11, 2003, October 9, 2005, July 20,
2006 and August 28, 2007. The forms explained the circumstances under which she would be
entitled to augmented compensation for her dependent child. By letters dated September 6,
2007, the Office informed appellant that her augmented compensation rate of 3/4 would be
changed to 2/3, effective immediately, because she was claiming an ineligible dependent. It
noted that compensation was payable until age 23 for an unmarried child who had reached age
18, had not completed four years of education beyond high school, and was a full-time student.
The Office requested that appellant submit verification of her son’s student status and provided
the appropriate forms.
On September 14, 2007 the Office issued a preliminary determination that appellant
received an overpayment of compensation in the amount of $13,048.35 for the period
November 30, 2003 to September 1, 2007. It found that she continued to receive disability
compensation at the augmented 3/4 rate when there was no evidence that her son was a full-time
student for that period. The Office found appellant at fault because she should have reasonably
been aware that her son was not an eligible dependent after turning 19 years of age. An
overpayment worksheet noted that appellant received compensation at the 3/4 rate totaling
$118,434.65 and that compensation at the 2/3 rate would total $105,386.30, which yielded an
overpayment in the amount of $13,048.35.
By letter dated November 10, 2007, appellant advised that her son had been a student at
Albany State University in Albany, Georgia since 2006, and that she had forwarded the
verification forms to the university. She attached records showing that her son had been enrolled
in educational institutions from the spring of 2002 through the first term of 2005.
In a November 28, 2007 decision, the Office finalized the determination that appellant
was at fault in the creation of an overpayment in compensation in the amount of $13,048.35
because she knew or should have known she was not entitled to receive wage-loss compensation
at the augmented 3/4 rate. It found the evidence submitted was insufficient to establish that her
son had been in a full-time course of study from November 30, 2003 through September 1, 2007.
In a letter dated January 23, 2008, the Office noted that appellant had not responded to
the overpayment decision. In a February 28, 2008 decision, it informed her that $250.00 would
be deducted from her continuing compensation each pay period to repay the overpayment.

2

LEGAL PRECEDENT -- ISSUE 1
Section 8102 of the Federal Employees’ Compensation Act1 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 When an overpayment has been made to an
individual 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 the individual is
entitled.3
The basic rate of compensation paid under the Act is 66 2/3 percent of the injured
employee’s monthly pay. Where the employee has one or more dependent as defined in the Act,
the employee is entitled to have his or her basic compensation augmented at the rate of 8 1/3
percent for a total of 75 percent of monthly pay.4 Section 8110(a)(3) of the Act provides that a
child is considered a dependent if he or she is under 18 years of age, is over 18 but is unmarried
and incapable of self-support because of a physical or mental disability or is an unmarried
student, as defined under section 8101(17).5 If a claimant receives augmented compensation
during a period where he or she has no eligible dependents, the difference between the
compensation to which he or she was entitled at the 2/3 compensation rate and the augmented
compensation received at the 3/4 rate constitutes an overpayment of compensation.6
ANALYSIS -- ISSUE 1
Appellant was placed on the periodic rolls in November 1990 and began submitting
EN1032 forms at that time. She had only one possible dependent, her son Clinton, who became
18 years old on November 28, 2002. The record contains no evidence that he was disabled due
to a mental or physical condition. Clinton would, therefore, not qualify as a dependent unless he
was an unmarried student attending an approved full-time course of study, had not completed
four years of post high-school education, and had not completed the academic semester in which
he became 23 years old.7
By letter dated September 6, 2007, the Office informed appellant that additional
information was needed to determine whether her son continued to be eligible as a dependent.
Appellant was asked to provide a statement and certification of school enrollment using attached
1

5 U.S.C. §§ 8101-8193.

2

5 U.S.C. § 8102(a).

3

5 U.S.C. § 8129(a).

4

5 U.S.C. § 8110(b).

5

5 U.S.C. § 8110(a)(3). Section 8101(17) defines a student as an individual under 23 years of age who has not
completed four years of education beyond the high school level and is currently pursuing a full-time course of study
at a qualifying college, university or training program.
6

5 U.S.C. § 8110(a)(3); see Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

7

Id.

3

forms. By letter dated November 10, 2007, she stated that she had forwarded the forms to
Albany State University where her son had been enrolled since 2006, and also submitted an
academic transcript from Morgan State University for the fall 2002 and spring 2003 terms,
periods that preceded her son’s 18th birthday. Another transcript showed that Clinton was
enrolled for the fall 2003 and spring 2004 semesters, but it is unclear if the transcript is from
Chattanooga State or Atlanta Metropolitan College. Furthermore, it is unclear whether he was a
full-time student. A Prince Georges Community College unofficial course record shows that
Clinton was enrolled part time in the fourth term of 2004 and also enrolled for the first term of
2005, although it is unclear if he was a full-time student for the latter period. An unofficial
transcript from Atlanta Metropolitan College shows that Clinton was enrolled part time for the
2005 summer session. There is therefore insufficient evidence to establish that appellant’s son
was pursuing a full-time course of study as defined under section 8101(17) of the Act for the
period of the overpayment in compensation at issue here.8
The record supports that appellant continued to receive compensation at the augmented
3/4 rate until September 1, 2007, although she had no qualifying dependent. For this period she
received augmented compensation at the 3/4 rate totaling $118,434.65, when she should have
received compensation at the 2/3 rate or $105,386.30. Thus the $13,048.35 difference
constitutes an overpayment in compensation,9 and the Board finds that the Office correctly
determined the fact and amount of overpaid compensation in this case.10
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act provides that an overpayment in compensation shall be recovered
by the Office unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.”11
Section 10.433(a) of the Office’s regulation provides that the Office:
“[M]ay consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from [the Office] are proper. The recipient must
show good faith and exercise a high degree of care in reporting events which may
affect entitlement to or the amount of benefits. A recipient who has done any of
the following will be found to be at fault in creating an overpayment:
(1) Made an incorrect statement as to a material fact which he or she knew
or should have known to be incorrect; or
8

5 U.S.C. § 8101(17); see Denise L. Crouch, 57 ECAB 161 (2005).

9

5 U.S.C. §§ 8101(17), 8110.

10

See Ralph P. Beachum, Sr., supra note 6.

11

5 U.S.C. § 8129; see Joan Ross, 57 ECAB 694 (2006).

4

(2) Failed to provide information which he or she knew or should have
known to be material; or
(3) Accepted a payment which he or she knew or should have known to be
incorrect. (This provision applies only to the overpaid individual).”12
In determining fault under section 10.433(a)(3), where the claimant receives
compensation through direct deposit, the payment goes directly from the U.S. Treasury to the
claimant’s account. The Office may not deposit compensation into a claimant’s account without
authorization. The claimant must first complete a form authorizing the electronic transfer of
payment to a named financial institution to be deposited to a designated account. It is only with
the claimant’s intent that these payments are deposited to his or her account which is something
more than receipt; it is acceptance. When control of the funds passes to the claimant upon
deposit, the acceptance necessary under section 10.433(a)(3) is established.13
Section 10.438(b) of Office regulations provides that failure to submit requested financial
information within 30 days shall result in denial of waiver and no further request for waiver shall
be considered until the requested information is furnished.14
ANALYSIS -- ISSUE 2
In this case, appellant received augmented compensation by direct deposit following her
son’s 18th birthday on November 28, 2002 until September 2, 2007. As noted appellant’s son did
not remain an eligible dependent after his 18th birthday. The Office found the overpayment
period to be November 30, 2003 to September 2, 2007. Since Office regulations define fault by
what the claimant knew or should have known at the time of acceptance, one of the
consequences of electronic fund transfers is that in many cases the claimant will not be at fault
for accepting the first incorrect payment because the requisite knowledge is lacking at the time of
deposit, and the Board so finds in this case as there is no evidence of record to show the period
covered by this direct deposit.15 A finding of no fault does not mean, however, that the claimant
may keep the money, only that the Office must consider eligibility for waiver for this period, and
the case must be remanded for the Office to determine whether she is entitled to waiver for this
period.
The EN1032 forms mailed to appellant by the Office and submitted by her since 1992
clearly explained the circumstances under which she would be entitled to augmented
compensation, which would end when a dependent child turned 18 and was no longer a full-time
student. The Board finds that after appellant’s receipt of the first direct deposit for which fault
may not be imputed to her, under the reasonableness standard delineated above, for the
subsequent direct deposits she knew or should have known that the compensation paid by direct
12

20 C.F.R. § 10.433 (1999); see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

13

Tammy Craven, 57 ECAB 689 (2006).

14

20 C.F.R. § 10.438(b); see John Skarbek, 53 ECAB 630 (2002).

15

See Karen K. Dixon, 56 ECAB 145 (2004).

5

deposits issued by the Office after the first direct deposit subsequent to her son’s 18th birthday on
November 28, 2002 were in error, and the Board finds that she was at fault under the third
standard outlined above for any period after the first direct deposit after her son was no longer
eligible. Recovery of the overpayment in compensation may not be waived for this time period,
and the decision dated November 28, 2007 is affirmed in this respect. The record in this case,
however, does not show when appellant’s individual direct deposits were made. Appellant
would not be at fault for the first compensation period after her son was no longer an eligible
dependent, and she could be entitled to waiver for this brief period. Nonetheless, in this case
appellant is not entitled to waiver because Office regulations provide that the failure to submit
requested information within 30 days shall result in a denial of waiver and no further request for
waiver will be considered until the requested information is provided. Appellant had the
responsibility to provide financial information to the Office, and she did not do so.16
In its preliminary determination dated September 14, 2007, the Office clearly explained
the importance of providing the requested financial information and advised appellant that it
would deny waiver if she failed to furnish the requested financial information within 30 days.
Appellant did not submit a completed overpayment questionnaire within the required 30-day
period, or otherwise submit financial information supporting her income and expenses. As a
result, the Office did not have the necessary financial information to determine if recovery of the
overpayment would defeat the purpose of the Act or if recovery would be against equity and
good conscience. Consequently, as appellant did not submit the financial information required
under section 10.438 of Office regulations, which was necessary to determine her eligibility for
waiver, she would not be entitled to waiver in this case.17
LEGAL PRECEDENT -- ISSUE 3
The Office’s implementing regulation provides that, if an overpayment of compensation
has been made to an individual entitled to further payments and no refund is made, the Office
shall decrease later payments of compensation, taking into account the probable extent of future
payments, the rate of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship.18
ANALYSIS -- ISSUE 3
Appellant did not submit an overpayment recovery questionnaire or other financial
information that the Office requested prior to the final November 28, 2007 overpayment
decision. The February 28, 2008 decision established a repayment schedule. The overpaid
individual is responsible for providing information about income, expenses and assets as
specified by the Office.19 When an individual fails to provide requested financial information,
the Office should follow minimum collection guidelines designed to collect the debt promptly
16

20 C.F.R. § 10.438.

17

Id.

18

20 C.F.R. § 10.441(a).

19

20 C.F.R. § 10.438.

6

and in full.20 As appellant did not submit any financial information to the Office as requested,
the Board finds that there is no evidence in the record to show that a recovery rate of $250.00
every 28 days was unreasonable. She has not shown that the Office improperly required
withholding $250.00 from her continuing compensation payments every 28 days.
CONCLUSION
The Board finds that an overpayment in compensation of $13,048.35 occurred because
appellant continued to receive augmented compensation after her son was no longer an eligible
dependent, that she was not entitled to waiver of the overpayment, and that the Office did not
abuse its discretion in setting the rate of recovery at $250.00 each compensation period.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 28, 2008 and November 28, 2007 be affirmed.
Issued: November 24, 2008
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

20

Frederick Arters, 53 ECAB 397 (2002); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Actions, Chapter 6.200.4(c)(2) (September 1994).

7


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
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and
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DEPARTMENT OF THE AIR FORCE,
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PETERSON AIR FORCE BASE,
)
Colorado Springs, CO, Employer
)
___________________________________________ )
D.J., Appellant

Appearances:
W.R. Procell, for the appellant
Office of Solicitor, for the Director

Docket No. 11-120
Issued: August 12, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 12, 2010 appellant filed a timely appeal from an April 19, 2010 Office of
Workers’ Compensation Programs’ (OWCP) nonmerit decision. Pursuant to the Federal
Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over this nonmerit decision. Because more than 180 days has elapsed between the most recent
merit decision of OWCP, March 23, 2009, and the filing of this appeal on October 12, 2010, the
Board lacks jurisdiction to review the merits of this claim.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits of her claim under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 15, 2008 appellant, then a 49-year-old budget technician, filed an
occupational disease claim alleging that she sustained an emotional condition in the performance
of duty. She indicated that she sustained intense headaches, depression and other emotional
symptoms related to concerns for her physical safety at work and her interactions with her
supervisors.
In support of her claim, appellant provided a statement in which she described those
conditions which she believed contributed to her condition. They included: that she was
verbally disciplined and threatened by a supervisor; that she disagreed with the manner her
appraisal was handled and that a supervisor made inappropriate comments towards her.
Appellant also alleged that on February 13, 2008 she was issued a formal letter of counseling.
She also submitted medical evidence noting her treatment for an adjustment reaction that
appeared to be work related. The employing establishment controverted the claim and submitted
statements explaining the reasons for its actions.
By decision dated June 4, 2008, OWCP denied appellant’s claim. It found that there
were no compensable factors of employment and that appellant did not establish that her claimed
condition arose in the performance of duty.
On June 8, 2008 appellant requested a hearing, which was held on October 27, 2008. At
the hearing, appellant’s representative noted that he only wished to focus on three of appellant’s
allegations as the other allegations could not be proven. They included that in February 2008
appellant was encouraged to attend the health clinic, and was subsequently tested in relation to
her mental capacity. Appellant’s representative alleged that appellant believed the results of the
testing affected her employability. Additionally, he alleged that this supported a work-related
psychiatric condition because of the referral to the clinic. Appellant’s representative also argued
that Raul Campos, the chief of the logistics branch and appellant’s supervisor, required medical
documentation to support her wish to work hours other than those that she had been assigned.
Additionally, on October 9, 2008 the employing establishment required that appellant attend a
meeting to review the results of the investigation of her complaints. Appellant’s representative
indicated that appellant was on sick leave when she asked to come in to review the results. He
also generally alleged that appellant was not provided with appropriate documentation.
On December 5, 2008 OWCP received a letter dated November 25, 2008 from
Mr. Campos who responded to the allegations presented and noted that, during a counseling
session on February 13, 2008, appellant became very upset, including crying and wailing.
Mr. Campos stated that he was concerned for her health and safety and suggested that she attend
the employing establishment clinic for a one-time visit to stabilize her emotional state before she
went home. He denied that it was related to her employment and advised that her visit was
confidential and that the results from the visit would not be used against her. Mr. Campos noted
that he received no information about the clinic visit other than limited information provided to
him by appellant. He noted that the visit was not a fitness-for-duty evaluation and confirmed
that civilians were given care at the clinic in sensitive situations. Mr. Campos stated that he was
unaware of any particular testing conducted at the clinic. With regard to scheduling, he advised
that the issue was that appellant wanted to start work at 9:00 a.m. as opposed to 8:00 a.m.

2

Mr. Campos explained that he had some latitude as long as it meshed with the mission of the
employing establishment. He explained that, without further documentation from her physician,
it was unclear why appellant needed a later start time. Mr. Campos denied that she was
threatened with discipline.
In a letter dated December 6, 2008, appellant’s representative responded to the statement
provided by the employing establishment. His assertions included that the employing
establishment improperly did not provide a copy of medical records to OWCP from the
February 2008 mental health clinic visit and did not properly file and protect such records.
In a March 23, 2009 decision, OWCP’s hearing representative affirmed the June 4, 2008
decision. She found that the actions discussed by appellant’s representative were administrative
in nature. OWCP’s hearing representative also found that there was no error in the
administrative actions.
On March 20, 2010 appellant’s representative requested reconsideration and submitted
additional evidence. He repeated his arguments which included that appellant was not provided
with a copy of the February 13, 2008 medical report compiled by the employing establishment.
Appellant’s representative alleged that the report was “suppressed” and a violation of the
regulations. Furthermore, he noted that OWCP had not considered the medical documentation.
On March 23, 2010 OWCP received an undated report from Barbara A. Batchelor, a
social worker, who related appellant’s description of events that she believed contributed to her
condition. They included conflicts with her coworkers and her bosses. Ms. Batchelor also noted
conflicts with her family. She advised that appellant entered psychotherapy on December 8,
2008 and stopped attending on January 6, 2010 due to financial difficulties. Ms. Batchelor
diagnosed several conditions which included major depression, obsessive-compulsive disorder,
post-traumatic stress disorder and a tumor requiring breast surgery. She also noted that appellant
had friends but was socially isolated due to unemployment.
By decision dated April 19, 2010, OWCP denied appellant’s request for reconsideration
on the grounds that her request neither raised error in the prior decision, substantial legal
questions nor included new and relevant evidence and, thus, it was insufficient to warrant review
of its prior decision.
LEGAL PRECEDENT
Under section 8128(a) of FECA,2 OWCP may reopen a case for review on the merits in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provides that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence that:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
2

5 U.S.C. § 8128(a).

3

“(ii) Advances a relevant legal argument not previously considered by OWCP; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by OWCP.”3
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.4
ANALYSIS
Appellant disagreed with the denial of her claim for an emotional condition and requested
reconsideration on March 20, 2010. The underlying issue on reconsideration was whether she
established a compensable factor of employment with regard to her claim that she sustained an
emotional condition in the performance of duty. However, appellant did not provide sufficient
evidence or argument to require OWCP to reopen the claim for a merit review.
In her March 20, 2010 request for reconsideration, appellant’s representative essentially
reiterated his previous arguments. This involved allegations that appellant was not provided with
a copy of the February 13, 2008 medical report compiled by the employing establishment and
this violated the regulations. Furthermore, appellant’s representative noted that OWCP had not
considered the medical documentation. The Board notes that he merely reiterated appellant’s
previous contentions regarding her employer’s actions which she believed were stressful. The
submission of evidence which repeats or duplicates evidence that is already in the case record
does not constitute a basis for reopening a case for merit review.5 Assertions that OWCP should
consider the medical evidence also does not show that OWCP erroneously applied a point of law
or advanced a relevant legal argument not previously considered. This is because the underlying
reason for the denial of the claim is factual in nature; appellant did not establish a compensable
factor of employment as a cause of her claimed condition. Until a compensable employment
factor is established, it is premature for OWCP to consider the medical evidence.6
Appellant also did not provide any relevant and pertinent new evidence to establish that
she sustained an emotional condition in the performance of duty. She submitted a report from
Ms. Batchelor, a social worker. To be relevant, the evidence submitted must address whether
appellant established any compensable factors of employment. Ms. Batchelor’s general
repetition of appellant’s account of events is not relevant to establishing whether a compensable
work factor is established as there is no indication that Ms. Batchelor was a witness to any of the
alleged incidents or otherwise has unique knowledge of such incidents. The Board has held that
3

20 C.F.R. § 10.606(b).

4

Id. at § 10.608(b).

5

David J. McDonald, 50 ECAB 185 (1998); John Polito, 50 ECAB 347 (1999); Khambandith Vorapanya, 50
ECAB 490 (1999).
6

See Alberta Dukes, 56 ECAB 247 (2005) (only when a compensable work factor has been established is the
medical evidence relevant to determining whether a claimant has as established a work-related emotional condition).

4

the submission of evidence which does not address the particular issue involved does not
comprise a basis for reopening a case.7
Consequently, the evidence and argument submitted by appellant on reconsideration does
not satisfy any of the three regulatory criteria for obtaining merit review of a claim. Therefore,
OWCP properly denied her request for reconsideration.
On appeal appellant’s representative repeated his prior arguments regarding consideration
of the medical evidence and the employing establishment’s release of medical information. As
discussed, these assertions are insufficient to require OWCP to reopen the claim for a merit
review.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits of her claim under 5 U.S.C. § 8128(a).

7

Robert P. Mitchell, 52 ECAB116 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000); Alan G.
Williams, 52 ECAB 180 (2000). To the extent that Ms. Batchelor’s report was offered as medical evidence, it is not
relevant for the reasons discussed infra, note 6 and accompanying text, and also because a social worker is not a
physician under FECA. 5 U.S.C. § 8101(2); see Ernest St. Pierre, 51 ECAB 623, 626 (2000) (reports of a social
worker do not constitute competent medical evidence as a social worker is not a physician as defined by 5 U.S.C.
§ 8101(2)).

5

ORDER
IT IS HEREBY ORDERED THAT the April 19, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 12, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
U.S. POSTAL SERVICE, NEWHALL ANNEX,
Newhall, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 19-0320
Issued: July 26, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 26, 2018 appellant filed a timely appeal from an October 16, 2018 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 OWCP properly determined that appellant abandoned her
request for a prerecoupment hearing before an OWCP hearing representative; (2) whether OWCP
properly determined that appellant received an overpayment of compensation in the amount of
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. 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.

$3,761.38 for the period November 11, 2017 through March 3, 2018, for which she was without
fault; and (3) whether OWCP abused its discretion by denying waiver of recovery of the
overpayment.
FACTUAL HISTORY
On February 28, 2017 appellant, then a 65-year-old rural carrier associate, filed an
occupational disease claim (Form CA-2) alleging that she developed overuse syndrome in her right
hip due to repeatedly entering and exiting her mail truck while in the performance of duty. She
noted that she first became aware of her claimed condition and related it to her federal employment
on December 31, 2013. On the reverse side of the claim form, appellant’s supervisor indicated
that appellant’s work hours varied and that she worked six days a week. On May 16, 2017 OWCP
accepted her claim for right hip tendon tear and bursitis of the right trochanteric bursa. Appellant
underwent right hip surgery on October 17, 2017.
On August 26, 2017 appellant began filing claims for compensation (Form CA-7) for the
period August 23 through December 8, 2017. She noted that in addition to her federal
employment, she worked approximately 20 hours a week as a care taker. The employing
establishment indicated that appellant started her federal job on December 31, 2013 with a base
pay of $19.94 per hour and that her average weekly work hours were 32.80. Appellant stopped
work on September 2, 2017 and her pay rate was $21.54 per hour and her weekly hours were 37.80.
She did not work 40 hours a week. On November 8, 2017 OWCP contacted the employing
establishment which reported that appellant’s hourly pay rate on April 3, 2017 was $21.54.
In a letter dated November 14, 2017, OWCP requested additional information from the
employing establishment regarding appellant’s gross earnings for one year prior to
August 23, 2017. It noted that as she was a rural carrier associate, to compute her weekly pay rate,
it needed to obtain the total gross earnings, less overtime, for one year prior to the pay rate date
and divide by 52. OWCP also notified appellant that on November 14, 2017 it had processed a
payment from October 17 through November 10, 2017 in the amount of $1,118.43 based on a
temporary provisional pay rate of $469.74 per week. It based this pay rate on an hourly wage of
$21.54 and average weekly work hours of 37.80 divided by 5 workdays and multiplied by 150
days divided by 52 weeks. OWCP informed appellant that if her actual pay rate was greater than
$469.74, it would process an adjustment based on the difference in pay upon receipt of the
necessary information from the employing establishment.
On November 30, 3017 the employing establishment reported that appellant’s total gross
earnings, exclusive of overtime, for one year prior to August 23, 2017 was $61,393.14. It also
noted that appellant used a combination of sick and annual leave from August 23 through
September 1, 2017 resulting in an overpayment of compensation.
On December 12, 2017 OWCP calculated appellant’s weekly pay rate as $1,180.64 based
on her yearly earnings of $61,393.14 from August 2016 through August 2017. Appellant’s annual
salary of $61,393.14 was divided by 52 weeks to equal $1,180.64. It determined that she had been
overpaid from August 23 through September 1, 2017, as she used leave, and underpaid from
September 2 through November 10, 2017. OWCP paid appellant wage-loss compensation in the
amount of $3,260.82 for the period November 11 through December 9, 2017 based on a weekly

2

pay rate of $1,180.64. It also paid appellant wage-loss compensation in the amount of $3,148.37
for the period December 10, 2017 through January 6, 2018 based on a weekly pay rate of
$1,180.64.
On December 15, 2017 OWCP entered appellant on the periodic rolls based on her weekly
pay rate of $1,180.64.
In a January 26, 2018 preliminary determination, OWCP informed appellant that she had
received an overpayment of compensation in the amount of $447.37 for the period August 23
through September 1, 2017 as she received wage-loss compensation for total disability and used
sick and annual leave. It found that she was without fault in the creation of the overpayment.
OWCP requested that appellant complete an overpayment recovery questionnaire (Form OWCP20) and afforded her 30 days to pay the debt in full or to follow her appeal options.
In a letter dated February 1, 2018, the employing establishment notified OWCP that it had
provided incorrect earnings for appellant for the period August 2016 through August 2017. The
yearly earnings in the amount of $61,393.14 improperly included overtime. It provided the
corrected yearly salary of $43,218.73. The employing establishment requested that OWCP
calculate an overpayment.
On February 2, 2018 appellant provided one page of the overpayment recovery
questionnaire (Form OWCP-20) indicating that she had none of the incorrectly paid checks in her
possession and that she had not transferred by loan, gift, or sale any property or case since she was
notified of the overpayment. She requested that OWCP process the $447.37 overpayment with
her pending underpayment.
On March 13, 2018 OWCP determined that wage-loss compensation in the amount of
$2,216.35 was due for the period March 4 through 31, 2018 based on appellant’s corrected weekly
pay rate of $831.13. It reached this amount by dividing $42,218.73 by 52 to equal $831.13. OWCP
also found that appellant received the net amount of $3,578.97 for the period September 2 through
November 10, 2017 based on a temporary weekly pay rate of $469.74 or $3,131.60. It determined
that based on the February 1, 2018 letter from the employing establishment, her weekly pay rate
was $831.13 resulting in $5,540.87 of wage-loss compensation for the September 2 through
November 10, 2017 period. As she had previously received $3,131.60, appellant was entitled to
an additional $2,409.27 due to underpayment. OWCP also recovered the $447.37 overpayment
which resulted in a net payment of $1,961.90 on March 12, 2018.
On March 12, 2018 OWCP completed worksheets and determined that based on the
corrected weekly pay rate of $831.13 appellant was entitled to receive $5,540.87 in wage-loss
compensation for the period September 2 through November 10, 2017 and $8,944.55 in wage-loss
compensation for the period November 11, 2017 through March 3, 2018.
In a March 27, 2018 preliminary determination, OWCP notified appellant that she had
received an overpayment of compensation in the amount of $3,761.38 due to incorrect pay rate
information provided by the employing establishment. It determined that she had received wageloss compensation in the amount of $12,705.93, for the period November 11, 2017 through
March 3, 2018 based on a reported yearly salary of $61,393.14, while she was entitled to receive

3

compensation in the amount of $8,944.55, based on her yearly salary of $43,218.73 (properly
calculated without overtime earnings) for the period November 11, 2017 through March 3, 2018
resulting in the finding of a $3,761.38 overpayment of wage-loss compensation. OWCP found
that appellant was without fault in the creation of the overpayment of wage-loss compensation. It
requested that she complete an overpayment recovery questionnaire (Form OWCP-20) and
afforded her 30 days to pay the debt in full or to follow her appeal options.
On April 19, 2018 appellant contested the fact and amount of the overpayment. She also
requested waiver of recovery of the overpayment. Appellant asserted that the salary calculation
of $61,393.14 for August 2017 through August 2018 was correct.
In a letter dated April 23, 2018, OWCP noted that appellant had not selected an appeal
option on the overpayment action request form and asked that she do so. On May 22, 2018
appellant requested a prerecoupment hearing on the issues of fact, amount, and waiver with
OWCP’s Branch of Hearings and Review. She also provided a completed overpayment recovery
questionnaire (Form OWCP-20) dated May 15, 2018. Appellant listed her income as $2,058.00
in social security benefits and $500.00 in guest house rental, totaling $2,558.00. She did not report
FECA benefits or earnings. Appellant asserted that she supported two minor granddaughters. She
listed her monthly expenses as $3,174.86 for housing, $400.00 for food, $200.00 for clothing,
$1,250.00 for utilities, and $675.00 for miscellaneous expenses. Appellant also reported a monthly
car payment of $179.86 and monthly credit card payments of $750.00 for total monthly expenses
of $6,629.72. She indicated that her checking account balance was $1,500.00 and that she had
$9,050.00 in savings for total funds of $10,550.00.
On May 24, 2018 appellant returned to full-duty work.3
In an August 16, 2018 letter, an OWCP hearing representative advised appellant that a
telephonic prerecoupment hearing was scheduled for October 4, 2018 at 12:00 p.m. Eastern
Standard Time.4 The hearing notice included a toll-free number and pass code to enable access to
the telephonic hearing. The hearing notice was mailed to appellant’s Newhall, California, address.
In a separate letter of the same date and to the same address, OWCP’s hearing representative
requested that appellant complete an overpayment recovery questionnaire (Form OWCP-20).
By decision dated October 16, 2018, an OWCP hearing representative found that appellant
had abandoned her oral prerecoupment hearing scheduled for October 4, 2018. She had afforded
appellant notice 30 days prior to the scheduled hearing, which she failed to attend. There was no
indication in the file that appellant contacted the Branch of Hearings and Review either prior to or
subsequent to the scheduled hearing to explain her failure to appear. She further issued a final
decision determining that appellant had received an overpayment of wage-loss compensation in
the amount of $3,761.38 for the period November 11, 2017 through March 3, 2018 due to the
employing establishment’s error in calculating her yearly salary, and that she was not at fault in
the creation of this overpayment. OWCP’s hearing representative denied waiver of recovery as
3

Fiscal worksheets of record indicate that OWCP terminated appellant’s compensation.

4
As appellant resided in the Pacific Standard Time zone, OWCP advised her to make certain that her local time
was adjusted accordingly.

4

appellant had not submitted financial documentation in support of her completed Form OWCP-20.
She further noted that appellant’s assets of $10,550.00 exceeded the resource base required to be
eligible for waiver such that recovery would not defeat the purpose of FECA. The hearing
representative determined that the $3,761.38 overpayment of compensation was due and payable
in full.
LEGAL PRECEDENT -- ISSUE 1
A claimant dissatisfied with a decision on his or her claim is entitled, upon timely request,
to a hearing before an OWCP representative.5 Unless otherwise directed in writing by the
claimant, the hearing representative will mail a notice of the time, place, and method of the oral
hearing to the claimant and to any representative at least 30 days before the scheduled hearing
date.6
A hearing before OWCP’s Branch of Hearings and Review can be considered abandoned
only under very limited circumstances.7 With respect to abandonment of hearing requests, Chapter
2.1601(g) of OWCP’s procedures8 and section 10.622(f) of its regulations9 provide in relevant part
that failure of the claimant to appear at the scheduled hearing, failure to request a postponement,
and failure to request in writing within 10 days after the date set for the hearing that another hearing
be scheduled shall constitute abandonment of the request for a hearing. Under these circumstances,
the Branch of Hearings and Review will issue a formal decision finding that the claimant has
abandoned his or her request for a hearing and return the case to the district office.10
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant abandoned her request for
a prerecoupment hearing.
OWCP’s Branch of Hearings and Review received appellant’s March 27, 2018 request for
an oral hearing. In a letter dated May 22, 2018, OWCP’s hearing representative provided appellant
30 days written notice of the hearing, which was scheduled for October 4, 2018 at 12:00 p.m.
Eastern Standard Time. OWCP mailed the May 22, 2018 notice of hearing to appellant’s last
known address, and it was not returned as undeliverable. Absent evidence to the contrary, a notice
mailed in the ordinary course of business is presumed to have been received by the intended

5

5 U.S.C. § 8124(b).

6

20 C.F.R. § 10.617(b).

7

C.Y., Docket No. 18-0263 (issued September 14, 2018); Claudia J. Whitten, 52 ECAB 483 (2001).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(g) (October 2011).
9

20 C.F.R. § 10.622(f).

10

Id.

5

recipient.11 The presumption is commonly referred to as the “mailbox rule.”12 It arises when the
record reflects that the notice was properly addressed and duly mailed.13 The current record is
devoid of evidence to rebut the presumption that appellant received the Branch of Hearings and
Review’s May 22, 2018 notice of hearing.
The hearing notice was properly addressed to appellant’s last known address.14 Appellant
did not call-in as instructed for the October 4, 2018 scheduled telephonic hearing and there is no
indication that she requested postponement of same.15 Moreover, she did not submit a written
request within the 10 days after the date set for the hearing and request that another hearing be
scheduled. Under the circumstances, OWCP’s hearing representative properly found that
appellant abandoned her hearing request.16
LEGAL PRECEDENT -- ISSUE 2
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 his or her duty.17 Section 8129(a) of FECA provides, in pertinent part:
“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.”18
An employee is paid compensation for total disability equal to a percentage of his or her
monthly pay.19 To calculate monthly pay, the initial issue is the determination of the specific time
when the employee’s monthly pay will be calculated. Under 5 U.S.C. § 8101(4), the monthly pay
is determined at the time of injury, the time disability begins, or the time compensable disability
recurs, if the recurrence begins more than six months after a return to regular full-time
employment.20

11

C.Y., Docket No. 18-0263 (issued September 14, 2018); Kenneth E. Harris, 54 ECAB 502, 505 (2003).

12

Id.

13

Id.

14

Id.; K.F., Docket No. 17-1035 (issued August 24, 2017).

15

20 C.F.R. § 10.622(c).

16

C.Y., supra note 11; M.V., Docket No. 17-1795 (issued March 1, 2018).

17

5 U.S.C. § 8102(a).

18

Id. at § 8129(a).

19

Supra note 17 at § 8106(a).

20

5 U.S.C. § 8101(4).

6

Once the proper time period is determined, the pay rate is determined under 5 U.S.C.
§ 8114(d). This section provides a specific methodology for determining pay rate:
“(1) If the employee worked in the employment in which he was employed at the
time of his injury during substantially the whole year immediately preceding the
injury and the employment was in a position for which an annual rate of pay--”
*

*

*

“(B) was not fixed, the average annual earnings are the product obtained by
multiplying his daily wage for the particular employment, or the average
thereof if the daily wage has fluctuated, by 300 if he was employed on the
basis of a 6-day workweek, 280 if employed on the basis of a 5½ -day week,
and 260 if employed on the basis of a 5-day week.”21
Section 8114(e) of FECA provides that the pay does not include overtime pay.22
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $3,761.38 for the period November 11, 2017 through March 3,
2018 because she received compensation based on a weekly pay rate of $1,180.64 rather than the
proper weekly pay rate of $831.13.23 Beginning November 11, 2017 OWCP paid appellant
compensation for total disability using the weekly pay rate of $1,180.64 per week, based on the
November 30, 2017 letter from the employing establishment which listed her yearly income as
$61,393.14. However, the employing establishment corrected appellant’s annual pay rate on
February 1, 2018 to $43,218.73 noting that the prior annual pay rate of $61,393.14 improperly
included appellant’s earned overtime pay. Therefore, OWCP correctly determined that the
compensation appellant received from November 11, 2017 to March 3, 2018 should have been
based on the weekly pay rate of $831.13 as that pay rate did not include overtime pay.24
The Board further notes that the record contains evidence which shows that, given the
above-noted payments at an improper pay rate, appellant received $12,705.93 in compensation for
the period November 11, 2017 through March 3, 2018 based on a reported yearly salary of
$61,393.14, when she was only entitled to receive $8,944.55, based on her yearly salary of

21

See also Federal (FECA) Procedure Manual, Part 2-- Claims, Determining Pay Rates, Chapter 2.900.4.a.(4)
(March 2011) noting that the pay rate of a rural carrier associate or part-time flexible employee of the Postal Service
who works substantially the entire year prior to injury would be computed under section 8114(d)(1)(B) of FECA
because an annual rate of pay can be established by obtaining the yearly earnings, without overtime, for the year prior
to the injury.).
22

5 U.S.C. § 8114(e)(1).

23

P.J., Docket No. 18-0248 (issued August 14, 2018).

24

Supra note 22.

7

$43,218.73. Therefore, OWCP properly determined that she received a $3,761.38 overpayment
of compensation.
LEGAL PRECEDENT -- ISSUE 3
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that
rests within OWCP’s discretion pursuant to statutory guidelines.25 These statutory guidelines are
found in section 8129(b) of FECA which provide: “Adjustment or recovery [of an overpayment]
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.”26 If OWCP finds a claimant to be without fault
in the matter of an overpayment, then, in accordance with section 8129(b), OWCP may only
recover the overpayment if it determined that recovery of the overpayment would neither defeat
the purpose of FECA, nor be against equity and good conscience.
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her 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.27 An individual is deemed to need substantially all of his or her current income to meet
current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00.28
OWCP’s procedures in effect at the time of the October 16, 2018 decision provide that the
assets must not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an
individual with a spouse or dependent plus $1,200.00 for each additional dependent.29 An
individual’s liquid assets include, but are not limited to cash, the value of stocks, bonds, saving
accounts, mutual funds, and certificate of deposits. Liquid assets include, but are not limited to,
the fair market value of an owner’s equity in property such as a camper, boat, second home, and
furnishings/supplies.30
According to 20 C.F.R. § 10.437, 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 attempting to repay the debt and when an individual, in reliance on such
payments or on notice that such payments would be made, gives up a valuable right or changes his
25

See P.J., supra note 23; Robert Atchison, 41 ECAB 83, 87 (1989).

26

5 U.S.C. § 8129(b).

27
20 C.F.R. § 10.436. See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment
Determinations, Chapter 6.400.4.a.(2) (September 2018); P.J., supra note 17; B.F., Docket No. 13-0785 (issued
September 20, 2013).
28

M.A., Docket No. 18-1666 (issued April 26, 2019); id. at Chapter 6.400.4.a(3).

29

Supra note 27 at Chapter 6.400.4.a(2).

30

Id. at Chapter 6.400.4.b(3).

8

or her position for the worse.31 To establish that a valuable right has been relinquished, it must be
shown that the right was in fact valuable, that it cannot be regained, and that the action was based
chiefly or solely in reliance on the payments or on the notice of payment.32
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. This information will also be used to determine the repayment
schedule, if necessary.33
ANALYSIS -- ISSUE 3
Appellant has not established that recovery of the overpayment would defeat the purpose
of FECA because her assets exceed the allowable resource base of $6,200.00 for an individual, as
provided in OWCP’s procedures. Her overpayment recovery questionnaire (Form OWCP-20)
established that she currently had assets of $10,550.00. Because appellant has not met the second
prong of the two-prong test of whether recovery of the overpayment would defeat the purpose of
FECA, it is not necessary to consider the first prong of the test i.e., whether her monthly income
exceeded her monthly ordinary and necessary expenses by more than $50.00.34 She did not
establish that she was entitled to waiver on the basis of defeating the purpose of FECA.35
Appellant also has not established that recovery of the overpayment would be against
equity and good conscience because she has not shown, for the reasons noted above, that she would
experience severe financial hardship in attempting to repay the debt or that she relinquished a
valuable right or changed her position for the worse in reliance on the payment which created the
overpayment.36
Because appellant has not established that recovery of the overpayment would defeat the
purpose of FECA or be against equity and good conscience, the Board finds that she has not shown
that OWCP abused its discretion by denying waiver of recovery of the overpayment.37

31

20 C.F.R. § 10.437(a), (b).

32

Id. at § 10.437(b)(1).

33

Id. at § 10.438.

34

Supra note 27 at Chapter 6.400.4.a.

35

M.A., supra note 28; A.C., Docket No. 18-1550 (issued February 21, 2019).

36

See P.J., supra note 23; William J. Murphy, 41 ECAB 569, 571-72 (1989).

37

Supra note 35.

9

CONCLUSION
The Board finds that OWCP properly determined that appellant abandoned her request for
a prerecoupment hearing before an OWCP hearing representative. The Board also finds that
appellant received an overpayment of compensation in the amount of $3,761.38 for the period
November 11, 2017 through March 3, 2018, for which she was without fault, and that OWCP did
not abuse its discretion by refusing to waive recovery of the overpayment.38
ORDER
IT IS HEREBY ORDERED THAT the October 16, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 26, 2019
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

38

With respect to recovery of the overpayment of compensation, the Board notes that appellant returned to fullduty work on May 24, 2018. The Board’s jurisdiction is limited to reviewing those cases where OWCP seeks recovery
from continuing compensation benefits under FECA. As appellant was no longer receiving wage-loss compensation,
the Board does not have jurisdiction with respect to the recovery of the overpayment under the Debt Collection Act.
See R.E., Docket No. 17-1625 (issued July 18, 2018).

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.E., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Marion, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1058
Issued: March 2, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 6, 2021 appellant, through counsel, filed a timely appeal from a June 2, 2021 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish greater than 29
percent permanent impairment of the left upper extremity, for which he previously received
schedule award compensation.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On September 8, 2003 appellant, then a 41-year-old senior correctional ofﬁcer, filed a
traumatic injury claim (Form CA-1) alleging that on September 6, 2003 he possibly fractured his
left shoulder blade and experienced swelling in his arm when he hit th e corner of a security cabinet
door with his left shoulder while in the performance of duty. He stopped work on the date of
injury. OWCP accepted the claim for complete rotator cuff tear or rupture, other joint derangement
of the left shoulder, sprain of the left shoulder and upper arm, superior glenoid labrum lesion, and
left exostosis, site unspecified. On December 3, 2003 appellant underwent authorized left shoulder
arthroscopic surgery. He returned to full-time, modified-duty work with restrictions, effective
June 8, 2004, until he stopped work on June 24, 2004.4
On August 2, 2004 appellant ﬁled a claim for compensation (Form CA-7) for a schedule
award.
By decision dated June 27, 2005, OWCP granted appellant a schedule award for eight
percent permanent impairment of the left upper extremity. The period of the award ran for 24.96
weeks from December 3, 2004 through May 26, 2005.
In a September 26, 2007 decision, OWCP granted appellant a schedule award for an
additional 10 percent permanent impairment of the left upper extremity, for a total of 18 percent
permanent impairment. The period of the award ran for 31.20 weeks from April 23 through
November 27, 2007.
By decision dated March 19, 2013, OWCP granted appellant a schedule award for an
additional three percent permanent impairment of the left arm, for a total of 21 percent left upper
extremity permanent impairment. The award ran for 9.36 weeks for the period October 26 to
December 30, 2012.
By decision dated August 6, 2018, OWCP expanded the acceptance of appellant’s claim to
include complex regional pain syndrome (CRPS) of the left upper limb.

3

Docket No. 06-2068 (issued April 20, 2007).

4

Appellant retired from the employing establishment effective April 15, 2007.

2

OWCP subsequently received a June 12, 2019 medical report by Dr. John W. Ellis, an
attending Board-certified family practitioner. Dr. Ellis determined that appellant had 16 percent
permanent impairment of the left upper extremity using the diagnosis-based impairment (DBI)
rating method, 45 percent permanent impairment of the left upper extremity using the range of
motion (ROM) rating method, and 80 percent permanent impairment of the left upper extremity
based on the accepted condition of CRPS under the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5 He
determined that MMI was reached on the date of his evaluation.
On September 15, 2019 Dr. Herbert White, Jr., a Board-certified orthopedic surgeon
serving as an OWCP DMA, reviewed the medical record, including Dr. Ellis’ June 12, 2019
findings. He found that appellant had 13 percent permanent impairment of the left upper extremity
based on CRPS and five percent permanent impairment of the left upper extremity based on a
labral tear using the DBI method, and 36 percent permanent impairment of the left upper extremity
using the ROM method in accordance with the sixth edition of the A.M.A., Guides. Dr. White
determined that the date of MMI was June 12, 2019, the date of Dr. Ellis’ impairment evaluation.
He noted discrepancies in Dr. Ellis’ impairment ratings.
By letter dated October 25, 2019, OWCP requested that Dr. Ellis review Dr. White’s
September 15, 2019 findings. In a November 14, 2019 addendum report, Dr. Ellis disagreed with
the DMA’s 13 percent left upper extremity impairment rating for CRPS and advised that his 80
percent left upper extremity impairment rating for the same condition remained unchanged.
On November 26, 2019 OWCP requested that DMA, Dr. White, review Dr. Ellis’
November 14, 2019 report. In a December 5, 2019 addendum report, the DMA related that
Dr. Ellis did not provide any additional information that would change his impairment rating.
On January 6, 2020 OWCP determined that a conflict in medical opinion existed between
Dr. Ellis and the DMA regarding the extent of appellant’s left upper extremity permanent
impairment. On January 29, 2020 it referred appellant, along with a statement of accepted facts
(SOAF) and the medical record, to Dr. Sunil Dedhia, a Board-certified orthopedic surgeon, for an
impartial medical examination.
In a March 10, 2020 report, Dr. Dedhia on examination of appellant’s left shoulder noted
that there was no evidence of obvious atrophy within the supraspinatus or infraspinatus fossa.
There was tenderness to palpation over the coracoid process, acromioclavicular joint, long head
biceps tendon, posterior capsule. ROM measurements included 90 degrees of flexion, 80 degrees
of abduction, 0 degrees of external rotation, 10 degrees of internal rotation, passive forward
elevation to 100 degrees, and passive adduction to 90 degrees.
Upon gross examination of appellant’s left upper extremity, there was no evidence of
obvious side-to-side upper extremity swelling or edema. There was no appreciable side-to-side
difference in temperature changes throughout the upper arm or forearm and very minimal coolness
was noted over the left hand compared to the right. There was no evidence of obvious hair changes
5

A.M.A., Guides (6 th ed. 2009).

3

on the right and left side. There was evidence of curved dystrophic nails on the left side compared
to the right. Skin turgor and texture was fairly symmetric with no evidence of glistening or
nonelastic skin. There was no evidence of obvious changes in the sweat pattern of the left upper
extremity compared to the right. Using Table 15-25 of the sixth edition of the A.M.A., Guides,
Dr. Dedhia assigned a point score of 4 for CRPS, class of diagnosis (CDX), based on his
examination findings. He determined the score of 4 resulted in a class 1 impairment under
Table 15-26. Dr. Dedhia took into account grade modifiers for functional history (GMFH) and
physical examination (GMPE) which resulted in a grade E, 13 percent permanent impairment of
the left upper extremity. He noted that a grade modifier for clinical studies (GMCS) was not
included in his calculations because clinical studies had not been provided to him. Dr. Dedhia
related that appellant had advised that radiographic studies, including a bone scan had been
performed; however, the actual reports and images were not available for his review. Utilizing
Table 15-5, he found that a labrum lesion resulted in a class 1, five percent impairment, with a
range adjustment to grade E based on GMPE and GMFH adjustments. Dr. Dedhia also found a
grade E seven percent impairment, for a full-thickness rotator cuff tear under Table 15-5 based on
GMFH and GMPE findings. He noted that his seven percent impairment rating included all
diagnoses related to appellant’s shoulder condition and was the greater rating based on the DBI
method.
Dr. Dedhia also utilized the ROM method at Table 15-34 to rate permanent impairment of
the left shoulder. He found 3 percent impairment for flexion, 6 percent impairment for abduction,
2 percent impairment for external rotation, 1 percent impairment each for extension and adduction,
and 4 percent impairment for internal rotation, totaling 17 percent permanent impairment of the
left upper extremity. Dr. Dedhia advised that since his 17 percent ROM permanent impairment
rating was greater than the DBI permanent impairment ratings, it was the predominate rating for
appellant’s left shoulder conditions. He determined that appellant had reached MMI.
By letter dated July 10, 2020, OWCP requested that Dr. Dedhia clarify his calculation of
the 17 percent ROM impairment rating as it calculated a 16 percent ROM impairment rating,
whether his 13 percent DBI impairment rating should be added to the 17 percent ROM impairment
rating for a total of 30 percent left upper extremity permanent impairment, and whether his current
total impairment rating considered the 18 percent left upper extremity impairment rating for which
appellant previously received schedule award compensation.
In a September 15, 2020 addendum report, Dr. Dedhia acknowledged that OWCP was
correct in finding that appellant had a 16 percent left shoulder ROM impairment rating. He
therefore found that appellant had 29 percent permanent impairment of the left upper extremity
based on CRPS and shoulder ROM deficits. Dr. Dedhia related that, if appellant had been given
a previous schedule award for 18 percent impairment, then he had an additional 11 percent
permanent impairment. He advised that his 29 percent impairment rating was not in addition to
the 18 percent previously awarded.
OWCP, by decision dated November 12, 2020, granted appellant a schedule award for an
additional 11 percent permanent impairment of the left upper extremity, resulting in a total of 29
percent permanent impairment. The period of the award ran for 34.32 weeks from March 10
through November 5, 2020 and was based on the impartial medical opinion of Dr. Dedhia.

4

On November 19, 2020 appellant, through counsel, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review.
OWCP subsequently received progress notes dated July 3 and August 22, 2018 by
Dr. Alan G. Shepard, a neurologist, who diagnosed Type 1 CRPS of the left upper extremity,
degeneration of the lumbar or lumbosacral intervertebral disc, and hand weakness.
OWCP issued an amended decision dated December 10, 2020, again granting appellant a
schedule award for an additional 11 percent permanent impairment of the left upper extremity, for
a total 29 percent permanent impairment, based on Dr. Dedhia’s impairment rating.
An oral hearing was held on March 18, 2021.
By decision dated June 2, 2021, OWCP’s hearing representative affirmed the
December 10, 2020 decision.
LEGAL PRECEDENT
The schedule award provisions of FECA 6 and its implementing regulations 7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses. 8 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).9 The Board has approved the use
by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes. 10
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).11 In addressing impairment for the upper extremities, the sixth edition of the
A.M.A., Guides requires identifying the impairment class for the diagnosed condition, which is
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6a (March 2017).
10

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

11

A.M.A., Guides 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement (6 th ed. 2009).

5

then adjusted by GMFH, GMPE, and GMCS. 12 Evaluators are directed to provide rationale for
their impairment rating choices, including the choices of diagnosis from regional grids and
calculations of modifier scores.13
Impairment due to CRPS is evaluated under the scheme found in Table 15-26 (Complex
Regional Pain syndrome (UEI)) as well as Table 15-24 and Table 15-25 and the accompanying
relevant text.14 The grade modifier level (ranging from zero to four) are described from the
categories of functional history, clinical studies, and physical examination. The grade modifier
levels are averaged to arrive at the appropriate overall grade modifier level and to identify a class
rating value. If that class number is not supported by the objective diagnostic criteria point, the
highest class specified by those points is selected. The rating for CRPS is a “stand alone”
approach.15
Regarding the application of ROM or DBI impairment methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that, if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).”16
FECA provides that, if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an examination. 17
For a conflict to arise, the opposing physicians’ viewpoints must be of virtually equal weight and
rationale.18 Where OWCP has referred the case to an impartial medical examiner (IME) to resolve
a conflict in the medical evidence, the opinion of such a specialist, if sufficiently well-reasoned
and based upon a proper factual background, must be given special weight. 19
ANALYSIS
The Board finds that this case is not in posture for decision.

12

A.M.A., Guides 385-419; see M.P., Docket No. 13-2087 (issued April 8, 2014).

13

D.S., Docket No. 19-0292 (issued June 21, 2019); R.V., Docket No. 10-1827 (issued April 1, 2011).

14

A.M.A., Guides 450-54.

15

Id.

16

FECA Bulletin No. 17-06 (May 8, 2017).

17

5 U.S.C. § 8123(a); A.R., Docket No. 18-0632 (issued October 19, 2018).

18

C.H., Docket No. 18-1065 (issued November 29, 2018.

19

W.M., Docket No. 18-0957 (issued October 15, 2018).

6

OWCP properly found a conflict in the medical opinion evidence between appellant’s
attending physician, Dr. Ellis and the DMA, Dr. White, regarding the extent of permanent
impairment of the left upper extremity due to his accepted left shoulder injury. It referred
appellant’s case to Dr. Dedhia pursuant to 5 U.S.C. § 8123(a) for an impartial medical examination
in order to resolve the conflict in medical opinion. In his March 10, 2020 report, the IME,
Dr. Dedhia, reviewed appellant’s history of injury and the relevant medical evidence, and provided
physical examination findings. He noted appellant’s accepted conditions of left shoulder,
including rotator cuff tear and left arm CRPS. In evaluating appellant’s permanent impairment
due to CRPS, using the DBI method at Table 15-25 of the sixth edition of the A.M.A., Guides,
Dr. Dedhia assigned a point score of 4 due to his examination findings. He determined that, under
Table 15-26, the CDX for appellant’s CRPS resulted in a class 1 impairment. Dr. Dedhia
considered adjustments for GMFH and GMPE which resulted in a grade E impairment with a
default value of 13 percent permanent impairment. He noted that an adjustment for GMCS was
not applicable as clinical studies had not been provided to him.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden of proof to establish entitlement to compensation. However,
OWCP shares responsibility in the development of the evidence to see that justice is done. 20 Once
it undertakes development of the record, it must do a complete job in procuring medical evidence
that will resolve the relevant issues in the case. 21
In a situation where OWCP secures an opinion from an IME for the purpose of resolving
a conflict in the medical evidence and the opinion from such IME requires clarification or
elaboration, it has the responsibility to secure a supplemental report from the examiner for the
purpose of correcting the defect in the original opinion. 22
The Board finds that while Dr. Dedhia attempted to rate appellant’s permanent impairment
of the left shoulder for CRPS, he clearly noted that appellant’s entire medical record, including all
diagnostic studies, was not provided for his review. He therefore did not apply the GMCS in the
net adjustment formula. OWCP should have referred the entire medical record including all
diagnostic reports and/or studies to Dr. Dedhia, once he noted this discrepancy. 23 On remand it
shall refer appellant’s entire medical record to Dr. Dedhia and request that he provide a
supplemental opinion regarding appellant’s permanent impairment of the left shoulder based upon
his CRPS diagnosis.
The Board also notes that Dr. Dedhia also used the ROM method under Table 15-34 to rate
permanent impairment of appellant’s left shoulder. Dr. Dedhia found 3 percent impairment for
flexion, 6 percent impairment for abduction, 2 percent impairment for external rotation, 1 percent
20

See L.B., Docket No. 19-0432 (issued July 23, 2019); William J. Cantrell, 34 ECAB 1223 (1983).

21

Id.; see also S.A., Docket No. 18-1024 (issued March 12, 2020).

22

J.C., Docket No. 20-0064 (issued September 4, 2020); S.R., Docket No. 17-1118 (issued April 5, 2018); Nancy
Lackner (Jack D. Lackner), 40 ECAB 232, 238 (1988).
23

Id.

7

impairment each for extension and adduction, and 4 percent impairment for internal rotation,
totaling 17 percent permanent impairment of the left upper extremity. However, he did not record
or otherwise report that he had taken three independent ROM measurements of appellant’s left
shoulder.24 On remand, OWCP should also request that Dr. Dedhia explain whether three ROM
measurements were taken to evaluate appellant’s left shoulder loss of ROM. Following this and
other such further development, as deemed necessary, it shall issue a de novo decision on
appellant’s schedule award claim.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 2, 2021 decision of the Office of Workers’
Compensation Programs is set aside. The case is remanded to OWCP for further proceedings
consistent with this decision of the Board.
Issued: March 2, 2022
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

24

The Board also notes that the record does not substantiate that Dr. Dedhia was advised by OWCP that three
independent measurements were necessary.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
U.S. POSTAL SERVICE, NORTH TEXAS
PROCESSING & DISTRIBUTION CENTER,
Coppell, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 20-0448
Issued: March 4, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 23, 2019 appellant filed a timely appeal from a December 3, 2019 merit
decision of the Office of Workers’ Compensation Programs. 1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 3

1
Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated November 18,
2020, the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately
be addressed in a decision based on a review of the case record. Order Denying Request for Oral Argument, Docket
No. 20-0448 (issued November 18, 2020).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 3, 2019 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.

ISSUES
The issues are: (1) whether OWCP appellant received an overpayment of compensation in
the amount of $6,905.83 for the period October 12, 2018 through January 5, 2019 because she
continued to receive disability compensation following her return to work; (2) whether it properly
found that appellant was at fault in the creation of the overpayment and, therefore, precluded from
waiver of recovery; and (3) whether OWCP properly determined that appellant abandoned her
request for a prerecoupment hearing.
FACTUAL HISTORY
On August 1, 2017 appellant, then a 24-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that on July 17, 2017 she sustained a left knee injury when her foot hit the bottom
of a trailer and her knee buckled back while in the performance of duty. She stopped work on
July 31, 2017. OWCP initially accepted the claim for left knee contusion, sprain, effusion, and
later expanded the acceptance of the claim to include a left knee lateral meniscus tear. It paid
appellant wage-loss compensation on the supplemental rolls as of September 17, 2017 and on the
periodic rolls as of November 12, 2017.
OWCP advised appellant on September 28, 2017 that she was expected to return to work
as soon as she was able, and it was her responsibility to advise the employing establishment once
her physician found her capable of returning to work. It also advised appellant that once she
returned to work she should notify OWCP and return payment for any period worked to prevent
an overpayment of compensation. OWCP advised appellant that, if she worked during any portion
of the covered period and compensation payments were received via either paper check or for
payments sent by electronic funds transfer (EFT), she was to return the payment to OWCP even if
she had already advised OWCP that she was working.
The employing establishment offered appellant a full-time modified assignment (limited
duty) as a mail processing clerk on October 4, 2018, which appellant accepted on
October 10, 2018.
In an e-mail to OWCP dated January 23, 2019, a health and resource management
specialist at the employing establishment noted that appellant had returned to work on
October 12, 2018.
In an automated compensation payment system (ACPS) worksheet dated January 28, 2019,
OWCP calculated that appellant’s overpayment amount for the period October 12, 2018 through
January 5, 2019 was $6,905.83. It noted that appellant was paid $158.86 for the period October 12
through 13, 2018 and $2,248.99 for each subsequent 28 -calendar-day period through
January 5, 2019.
In a preliminary overpayment determination dated July 8, 2019, OWCP advised appellant
that an overpayment of compensation in the amount of $6,905.83 had been created because she
returned to work full time on October 12, 2018, but continued to receive wage-loss compensation
through January 5, 2019. Appellant’s 28-day net compensation payment for September 16
through October 13, 2018 was $2,224.07, while her 28-day net compensation payment for the three

2

subsequent 28-day periods through January 5, 2019 was $2,248.99. OWCP provided its
computation of the amount of the overpayment for this period, dividing her 28-day compensation
during the relevant periods by 28 to arrive at a daily rate, then multiplying the daily rate by the
number of days appellant was overpaid. It made the preliminary finding that appellant was at fault
in the creation of the overpayment, as she accepted payments she knew or should have known to
be incorrect. OWCP advised appellant that she received a paper compensation check with the
printed period of payment and the amount paid and she should have rea sonably known that the
payment was incorrect because the dates overlapped with the period she worked ; therefore, she
accepted a payment she knew or reasonably should have known was incorrect. It afforded
appellant 30 days to submit additional evidence and argument and to request a hearing.
On August 2, 2019 appellant requested a prerecoupment hearing on an overpayment action
request form and contested the fact of the overpayment, the amount of the overpayment, and the
preliminary finding of fault, requesting a waiver. She completed an overpayment recovery
questionnaire (Form OWCP-20) and explained that she had reported her return to full-time work
in October 2018. Appellant noted that it took so long to “get my checks started” she believed the
checks were money she was due.
In a letter dated October 2, 2019, OWCP’s hearing representative notified appellant that a
telephonic hearing was scheduled for Tuesday, November 19, 2019 at 2:30 p.m. Eastern Standard
Time (EST). The notice provided the appropriate toll-free number and passcode for the hearing.
OWCP’s hearing representative mailed the notice to appellant’s last known address of record.
Appellant did not appear for the hearing.
By decision dated December 3, 2019, OWCP determined that appellant had abandoned her
request for a prerecoupment hearing. It indicated that appellant had received 30 days advanced
written notice of the hearing scheduled for November 19, 2019, but that she failed to appear.
OWCP further noted that there was no indication in the record that appellant had contacted it either
prior to, or within 10 days after the hearing to request a postponement or provide an explanation
to OWCP for her failure to appear at the hearing. Consequently, appellant was deemed to have
abandoned her request for an oral hearing.
OWCP also finalized the preliminary overpayment determination that an overpayment of
compensation in the amount of $6,905.83 for the period October 12, 2018 through January 5, 2019
was created. It found that appellant was at fault in the creation of the overpayment and required
recovery in full.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA4 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. 5 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
4

5 U.S.C. §§ 8101-8193.

5

Id. at § 8102(a).

3

law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled. 6
A claimant is not entitled to receive temporary total disability and actual earnings for the
same period. 7 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.8
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$6,905.83 for the period October 12, 2018 through January 5, 2019 because she continued to
receive disability compensation following her return to work.
OWCP paid appellant wage-loss compensation for disability on the periodic rolls. The
evidence reflects that appellant returned to work, full time, on October 12, 2018. Appellant
continued to receive wage-loss compensation through January 5, 2019. A claimant is not entitled
to receive temporary total disability benefits and actual earnings for the same time period. 9
Accordingly, the Board finds that appellant received an overpayment of compensation.10
The record shows that OWCP calculated that, from October 12, 2018 through January 5,
2019, appellant received $6,905.83 in total net compensation, but was not entitled to any
compensation during this time period. OWCP explained that appellant was paid $158.86 for the
period October 12 through 13, 2018 and $2,248.99 for each subsequent 28 -calendar day period
through January 5, 2019.11 The Board finds that OWCP properly determined that appellant
received an overpayment of compensation in the amount of $6,905.83 for the period October 12,
2018 through January 5, 2019.
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

6

Id. at § 8129(a).

7

See M.S., Docket No. 16-0289 (issued April 21, 2016); D.B., Docket No. 15-0258 (issued February 1, 2016).

8

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

9

Supra note 7.

10

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

11

The daily rate for the period September 16 through October 13, 2018 was $79.43. The daily rate for the periods
during October 14, 2018 through January 5, 2019 was $80.32.

4

equity and good conscience.12 No waiver of an overpayment is possible if the claimant is at fault
in creating the overpayment.13
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. 14
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
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. 15
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. 16
ANALYSIS -- ISSUE 2
The Board finds that the case is not in posture for decision.
In order for it to establish that appellant was at fault in the creation of the overpayment of
compensation, OWCP must establish that, at the time appellant received the compensation check
in question, she knew or should have known that the payment was incorrect. 17
The Board has explained that when a claimant returns to work and subsequently receives
a compensation check in the mail covering a period of employment, if he or she knows or should
have known that they were not entitled to such compensation, but decides nonetheless to cash or
deposit the check, the cashing or depositing of the check establishes fault.18
On September 28, 2017 OWCP advised appellant that she was to immediately inform it of
any return to work. It also advised appellant that if she continued to receive wage-loss
12

5 U.S.C. § 8129(b).

13

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

14

20 C.F.R. § 10.433(a). See Kenneth E. Rush, 51 ECAB 116, 118 (1999).

15

Id. at § 10.433(b).

16

Diana L. Booth, 52 ECAB 370 (2001).

17

J.H., Docket No. 17-0592 (issued May 1, 2018); Linda E. Padilla, 45 ECAB 768, 772 (1994).

18

See J.H., id.; William F. Salmonson, 54 ECAB 152 (2002).

5

compensation by check, but had worked during any period covered by a check, she had to return
the check, even if she had reported her return to work to OWCP. Thus, appellant should have
known that she could not receive wage-loss compensation by check after her return to work.
The Board finds that as the checks in question do not appear in the record, it is unable to
verify that the checks identified the period for which compensation was paid and , therefore, that
appellant should have known that the checks were compensation payments for the period following
which she had returned to work.
Accordingly, the Board finds that the case must be remanded to OWCP. OWCP shall scan
copies of the checks issued to appellant for the period October 12, 2018 through January 5, 2019
into to the case record. OWCP shall thereafter determine whether appellant knew or should have
known that she received an overpayment of compensation. OWCP shall then issue a new
preliminary overpayment determination regarding the issue of fault, with an overpayment action
request form, a Form OWCP-20 instructions for appellant to provide supporting financial
documentation. Following this and other such further development as deemed necessary, OWCP
shall issue a de novo decision.19
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $6,905.83 from October 12, 2018 through January 5, 2019. The
Board further finds, however, that this case is not in posture for decision as to whether appellant
was at fault in the creation of the overpayment.

19

In light of the Board’s disposition of Issue 2, Issue 3 is rendered moot.

6

ORDER
IT IS HEREBY ORDERED THAT the December 3, 2019 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: March 4, 2022
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

7