United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.F., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Fort Worth, TX, Employer 

__________________________________________ 

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Docket No. 13-1514 

Issued: September 25, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On June 12, 2013 appellant filed a timely appeal from the March 14, 2013 merit decision 

of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 20 C.F.R. §§ 501.2(c) 

and 501.3, the Board has jurisdiction over the merits of this case. 

ISSUES 

 The issues are: (1) whether appellant received a $12,588.57 overpayment of 

compensation; (2) whether OWCP abused its discretion by refusing to waive recovery of the 

overpayment; and (3) whether OWCP properly required repayment of the overpayment by 

deducting $445.00 from appellant’s compensation payments every four weeks. 

FACTUAL HISTORY 

On October 28, 2011 appellant, then a 50-year-old correctional officer, filed a traumatic 

injury claim (Form CA-1) alleging that on October 28, 2011 he used a mouse to click on 

telephone calls for approximately six hours and began to feel pain radiating in his right arm. 

OWCP accepted the claim for other tenosynovitis of the right hand and wrist, chronic pain 

syndrome, and sprains of the right shoulder, upper arm, wrist and neck. Appellant stopped work 
2

on October 28, 2011 and did not return. He received compensation for total disability on the 

periodic compensation rolls.1

In a September 21, 2012 letter, OWCP advised appellant of its preliminary determination 

that he received an overpayment in the amount of $12,588.57 for the period January 1 to 

August 25, 2012. It indicated that the overpayment occurred “because your employing agency 

provided the incorrect figure for your night differential pay and you were overpaid from 

January 1 to August 25, 2012.” OWCP also made a preliminary determination that appellant 

was not at fault in creating the overpayment. In an accompanying memorandum, it indicated that 

he was not paid premium pay to which he was entitled from January 1 through February 11, 

2012 and therefore on April 18, 2012 it adjusted his compensation to include $1,517.08 per week 

of base pay, $1,258.79 per week of night differential, $58.15 per week of Sunday premium pay 

and $178.61 per week of “other” pay for a total of $3,012.64. OWCP indicated that it paid 

appellant $2,920.85 for the pay rate adjustment covering the period January 15 to February 11, 

2012 and $10,429.69 for the pay rate adjustment covering the period January 1 to June 2, 2012.2 

It noted that, on June 11, 2012, his night differential was determined to be $151.72 per week and 

his Sunday premium pay was found to be $75.86 per week. After the base pay of $1,517.08 per 

week was added to these figures, appellant had total pay of $1,744.66 per week. OWCP 

explained that on July 24, 2012 the employing establishment indicated that his yearly base salary 

was $78,883.00 and that he earned premium pay for one year prior to the date of injury in the 

amount of $3,622.19 for night differential, $945.00 for Sunday premium pay, and $820.26 for 

Sunday premium pay with night differential.3 Based upon these figures, OWCP calculated 

appellant’s weekly base pay as $1,516.98, night differential as $69.66, Sunday premium as 

$18.17, and Sunday premium pay with night differential pay as $15.77, for total weekly pay of 

$1,620.59. It calculated that he received a $12,588.57 overpayment by subtracting $37,402.44 

(the amount he was owed based on the $1,620.59 weekly pay rate for the period January 1 to 

August 25, 2012) from $50,491.01 (the amount he was paid at the incorrect rate for this period).4 

OWCP advised appellant of his options if he disagreed with the preliminary finding, including 

requesting a prerecoupment hearing with an OWCP hearing representative, and requested that he 

complete and return an enclosed Overpayment Recovery Questionnaire (Form OWCP-20) within 

30 days. 

Appellant disagreed with the preliminary overpayment determination, and requested a 

hearing with an OWCP hearing representative on the issues of fact and amount of overpayment, 

fault and waiver. He stated that he believed the overpayment calculations were incorrect given 

the relevant figures for base pay, night differential, Sunday premium pay and Sunday premium 

 1

 OWCP previously accepted that appellant sustained lumbar and right knee strains on December 16, 2010. 

2

 The record reveals that appellant received the $2,920.85 check on April 27, 2012 and the $10,429.69 check on 

June 15, 2012. 

3

 The record contains a July 24, 2012 e-mail in which an employing establishment official indicated that, for the 

period October 24, 2010 to November 5, 2011, appellant had base pay of $78,883.00, night differential of $3,622.19, 

Sunday premium pay of $945.00 and Sunday premium pay with night differential of $820.26. 

4

 The record contains a pay rate memorandum dated September 11, 2012 containing the $37,402.44 figure (i.e., 

the amount OWCP felt appellant should have received from January 1 to August 25, 2012), but the memorandum 

does not clearly show how this figure was derived. 
3

pay with night differential. Appellant completed and returned the Form OWCP-20 in late 

October 2012 and asserted that it would be against equity and good conscience for him to repay 

the overpayment. He indicated that he had used the compensation checks he received to pay 

bills that were past due, including bills for braces for his son and child custody fees. Appellant 

reported his monthly income as $6,700.00. For monthly expenses, he reported $3,100.00 for 

rent/mortgage, $700.00 for food, $500.00 for clothing, $1,300.00 for utilities, $400.00 for credit 

card payments, $75.00 for a retail store bill, $205.00 for a time share bill, and $1,200.00 for 

“other expenses.” Appellant claimed that his assets consisted of $950.00 in cash on hand and 

balances of checking and savings accounts. 

A prerecoupment hearing was held with an OWCP hearing representative on 

February 4, 2013. Appellant’s representative spoke on his behalf and alleged that an 

overpayment did not occur because OWCP had not paid appellant the proper amount of 

compensation between January 1 and August 25, 2012.5

 She stated that, according to his salary, 

appellant was supposed to receive 75 percent of $78,883.00 and asserted that her calculations 

revealed that OWCP did not pay him this amount. Appellant’s representative stated that he was 

entitled to Sunday premium pay with night differential at a rate of $51.03 per hour, which was 

$408.24 per day. She contended that appellant’s regular night differential working Monday, 

Thursday, Friday and Saturday was $331.84 per day. Appellant’s representative asserted that he 

was only being paid the net amount of $4,440.13 per month, when he was entitled to $4,804.14 

per month.6

 She noted that appellant should have received the gross amount of $5,234.01 with 

the only deductions being health and life insurance and indicated that the amounts he received 

tended to fluctuate. Appellant’s representative stated that, even when considering that 

appellant’s health insurance premiums went up, his pay was still off by about $400.00 every 

month. She asserted that when he went to his personnel office he was told that his calculations 

were correct. Appellant’s representative stated that it would be a hardship for appellant to pay 

back the overpayment as he was totally disabled and had already used the compensation he 

received for various purposes. 

In a March 14, 2013 decision, an OWCP hearing representative determined that appellant 

received a $12,588.57 overpayment of compensation. She found that appellant was not at fault 

in creating the overpayment but that the overpayment was not subject to waiver. The hearing 

representative required repayment of the overpayment by deducting $445.00 from appellant’s 

compensation payments every four weeks. Regarding the manner in which the overpayment 

occurred, OWCP’s hearing representative stated, “I find the evidence establishes that an 

overpayment occurred, as the district office initially calculated the claimant’s pay rate based on 

incorrect information initially provided by the employing agency.” She briefly discussed the pay 

rate calculation that appellant’s representative provided at the February 4, 2013 prerecoupment 

hearing and stated that, although appellant’s representative based her calculations on hourly 

 5

 The Board notes that appellant’s representative at that time of the prerecoupment hearing is not representing 

appellant in the present appeal. 

6

 Appellant’s representative stated that she was using the $3,622.19 figure for night differential, the $945.00 

figure for Sunday premium pay and the $820.26 figure for Sunday premium pay with night differential in her 

calculations. 
4

figures, OWCP “calculates weekly compensation by dividing the annual salary and premium pay 

amounts by the 52 weeks in the work year.”7

LEGAL PRECEDENT -- ISSUE 1 

Section 8102(a) of FECA provides that the United States shall pay compensation for the 

disability or death of an employee resulting from personal injury sustained while in the 

performance of his duty.8

 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.”9

Section 8116(a) of FECA provides that while an employee is receiving compensation or 

if he has been paid a lump sum in commutation of installment payments until the expiration of 

the period during which the installment payments would have continued, the employee may not 

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

specified instances.10

In deciding matters pertaining to a given claimant’s entitlement to compensation benefits, 

OWCP is required by statute and regulation to make findings of fact.11 OWCP procedure further 

specifies that a final decision of OWCP “should be clear and detailed so that the reader 

understands the reason for the disallowance of the benefit and the evidence necessary to 

overcome the defect of the claim.”12 These requirements are supported by Board precedent.13

ANALYSIS -- ISSUE 1 

 The Board finds that the case is not in posture for decision regarding whether appellant 

received a $12,588.57 overpayment of compensation and the case must be remanded to OWCP 

for further development. 

 7

 In a footnote, OWCP’s hearing representative made a general reference to Chapter 2.900.10 of OWCP’s 

procedure manual. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 

2.900.10 (March 2011). 

 8

 5 U.S.C. § 8102(a). 

9 Id. at § 8129(a). 

10 Id. at § 8116(a). 

 11 Id. at § 8124(a) provides that OWCP “shall determine and make a finding of facts and make an award for or 

against payment of compensation.” 20 C.F.R. § 10.126 provides in pertinent part that the final decision of OWCP 

“shall contain findings of fact and a statement of reasons.” 

 12 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5c(3)(e) 

(February 2013). 

13 See James D. Boller, Jr., 12 ECAB 45, 46 (1960). 
5

 In its preliminary determination, OWCP provided a discussion of the amounts of 

premium pay appellant received in addition to base pay for various periods. It noted that 

adjustments were made based on newly obtained evidence and that he received two checks 

intended to correct errors in the amount of compensation he received for various periods. OWCP 

concluded that appellant received $50,491.01 in compensation for the period January 1 to 

August 25, 2012. The Board has reviewed the record, including the Case Management section of 

the Integrated Federal Employees Compensation System (IFECS), and notes that the record does 

in fact support that he received $50,491.01 in compensation for the period January 1 to 

August 25, 2012. 

 OWCP then determined that appellant should have received $37,402.44 in compensation 

for the period January 1 to August 25, 2012. It subtracted this figure from the $50,491.01 in 

compensation he actually received for the period January 1 to August 25, 2012 and concluded 

that appellant received a $12,588.57 overpayment for this period. 

 The Board finds that OWCP has not provided adequate facts and findings for its 

determination that appellant received a $12,588.57 overpayment for the period January 1 to 

August 25, 2012. In particular, OWCP did not explain why appellant should have properly 

received only $37,402.44 in compensation for the period January 1 to August 25, 2012. 

 Although it is not clear from OWCP’s preliminary or final determination, it appears that 

OWCP might have determined that appellant was entitled to receive $1,620.59 for each of the 34 

weeks during the period January 1 to August 25, 2012. Determining a claimant’s pay rate for 

compensation purposes is a complicated process requiring reference to the relevant precedent. 

However, in making this ostensible determination, OWCP did not make any detailed reference to 

its precedent (such as the controlling statute, OWCP regulations or OWCP procedure) or explain 

how this precedent applied in the present case.14 In her March 14, 2013 decision, OWCP’s 

hearing representative briefly discussed the pay rate calculation that appellant’s representative 

provided at the February 4, 2013 prerecoupment hearing and stated that, although appellant’s 

representative based her calculations on hourly figures, OWCP “calculates weekly compensation 

by dividing the annual salary and premium pay amounts by the 52 weeks in the work year.”15 

The Board notes that this statement does not adequately clarify any of the above-noted 

 

 14 In her March 14, 2013 decision, OWCP hearing representative made a general reference to Chapter 2.900.10 of 

OWCP’s procedure manual, but she did not provide a clear explanation of how such procedure should be applied in 

the present case. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 

2.900.10 (March 2011). See also 5 U.S.C. §§ 8101(4), 8114; 20 C.F.R. § 10.216 (regarding pay rate calculations). 

The Board notes that multiplying $1,620.59 times the 34 weeks during the period January 1 to August 25, 2012 

yields the figure $55,100.06, a figure greater than the $50,491.01 in compensation appellant received for the period 

January 1 to August 25, 2012. While it is unclear from the record, a worksheet suggests that OWCP multiplied this 

amount by the 3⁄4 compensation rate for a claimant with at least one dependent under FECA and then subtracted 

amounts for several forms of insurance premiums. See 5 U.S.C. § 8110(b) (regarding the pay rate for a claimant 

with at least one dependent). 

15 Appellant and his representative provided their own calculations of the pay rate for compensation purposes. 

During the February 4, 2013 prerecoupment hearing, appellant’s representative provided calculations showing that 

she felt appellant should have received the gross amount of $5,234.01 per month. On appeal, appellant provided 

calculations showing that he believed he should have received the gross amount of $5,206.80 per month. The Board 

has reviewed these calculations but is unable to determine from the record whether they accurately reflect his 

entitlement to compensation. 
6

deficiencies in OWCP’s explanation of how it calculated the claimed $12,588.57 overpayment in 

the present case. In the absence of a detailed explanation of how and why OWCP calculated the 

amount of compensation to which appellant is entitled for the period of the claimed 

overpayment, appellant would not understand the specific defect of his claim and the kind of 

evidence which would tend to overcome it.16

 Therefore, the case shall be remanded to OWCP for further development, with regard to 

the fact and amount of the claimed overpayment of compensation. After carrying out this 

development, OWCP shall issue an appropriate decision containing adequate facts and findings 

explaining its determinations regarding this overpayment. 

CONCLUSION 

The Board finds that the case is not in posture for decision regarding whether appellant 

received a $12,588.57 overpayment of compensation. The case is remanded to OWCP for 

further development.17

ORDER 

IT IS HEREBY ORDERED THAT the March 14, 2013 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded to OWCP for further 

proceedings consistent with this decision of OWCP. 

Issued: September 25, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 16 See supra notes 11 through 13. 

17 Given the Board’s disposition of the first issue of this case, it is premature for the Board to consider the second 

and third issues at the present time.