United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Cincinnati, OH, Employer 

__________________________________________ 

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Docket No. 14-101 

Issued: March 20, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 21, 2013 appellant filed a timely appeal from the September 16, 2013 merit 

decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal 

Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case. 

ISSUES 

The issues are: (1) whether appellant received a $1,113.85 overpayment of 

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

overpayment. 

FACTUAL HISTORY 

In May 2007, OWCP accepted that appellant, then a 37-year-old mail clerk, sustained a 

lumbosacral sprain due to her repetitive work duties, including throwing mail parcels and lifting 

 1

 5 U.S.C. §§ 8101-8193. 
2

and pulling heavy objects. She initially worked in a limited-duty position for the employing 

establishment, but she stopped work in March 2012 and was placed on the total disability rolls.2 

On January 2, 2013 appellant returned to full-time work for the employing establishment 

without wage loss. She continued to receive total disability compensation through 

January 12, 2013. 

In a January 16, 2013 notice, OWCP advised appellant of its preliminary determination 

that she received a $1,113.85 overpayment of compensation because she returned to work on a 

full-time basis without wage loss on January 2, 2013, but continued to receive compensation for 

wage loss due to temporary total disability through January 12, 2013.3

 It also made a 

preliminary determination that she was not at fault in the creation of the overpayment as she 

received her electronic payment automatically and that there was no evidence that she knew or 

should have known the payment was incorrect when she received it. OWCP advised appellant 

that she could submit evidence challenging the fact, amount or finding of fault and request 

waiver of the overpayment. It informed her that she could submit additional evidence in writing 

or at a prerecoupment hearing, but that a prerecoupment hearing must be requested within 30 

days of the date of the written notice of overpayment. OWCP requested that appellant complete 

and return an enclosed financial information questionnaire within 30 days even if she was not 

requesting waiver of the overpayment. 

Appellant submitted a financial information questionnaire, which she completed on 

February 7, 2013. She did not list any monthly income, but she listed $2,737.00 in monthly 

expenses, comprised of $615.00 for rent or mortgage, $600.00 for food, $438.00 for utilities, 

$835.00 for loan payments to the Postal Credit Union and $249.00 for unspecified miscellaneous 

expenses. Appellant listed $140.00 in total assets comprised of her checking account balance. 

Appellant asked for waiver of recovery of the overpayment and requested a 

prerecoupment hearing with an OWCP hearing representative. At the July 16, 2013 hearing, she 

stated that she did not realize that she had been overpaid when she continued to receive total 

disability compensation after returning to work on January 2, 2013. Appellant testified that she 

had a net monthly income of $3,273.12 in salary from the employing establishment.4

 She 

asserted that she had monthly expenses of $3,106.55, comprised of $615.00 for a mortgage; 

$600.00 for food; $324.00 for utilities (natural gas, electric and water); $108.00 for a cell phone; 

$46.27 for cable television; $46.00 for internet; $129.00 for unreimbursed dental expenses; 

 2

 Appellant was placed on the daily rolls effective March 31, 2012 and on the periodic rolls effective 

July 29, 2012. 

3

 OWCP provided documents regarding appellant’s compensation payments in early 2013 and calculations 

showing that she received $1,113.85 in total disability compensation during the 11 days (January 2 to 12, 2013) that 

she was not entitled to receive such compensation. On January 12, 2013 appellant received an electronic $2,835.25 

payment covering the period December 16, 2012 to January 12, 2013 and the calculations showed that the portion of 

this payment covering the period January 2 to 12, 2013 equaled $1,113.85. 

4

 Appellant received a $1,510.67 payment 26 times per year. Dividing the multiplied product of these two figures 

($39,277.42) by 12 yields the monthly income figure of $3,273.12. 
3

$122.00 for car insurance; $120.00 for gasoline; $942.50 for a car loan; and $53.78 for union 

dues.5 Appellant testified that she had about $2.00 in assets in the bank.6

In a September 16, 2013 decision, the hearing representative determined that appellant 

received a $1,113.85 overpayment of compensation. She found that appellant was not at fault in 

the creation of the overpayment but that the overpayment was not subject to waiver. The hearing 

representative found that recovery of the overpayment would not defeat the purpose of FECA 

because appellant’s monthly income ($3,273.12) exceeded her monthly expenses ($3,106.55) by 

more than $50.00. She directed appellant to forward $50.00 to OWCP each month to repay the 

$166.57 overpayment.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 or her 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 or she has been paid a lump sum in commutation of installment payments until the 

expiration of the period during which the installment payments would have continued, the 

employee may not receive salary, pay or remuneration of any type from the United States, except 

in limited specified instances.10

ANALYSIS -- ISSUE 1 

The Board finds that appellant received a $1,113.85 overpayment of compensation. In 

the present case, appellant received total disability compensation for the period January 2 to 12, 

2013 despite the fact that she had returned to work on January 2, 2013 without wage loss and 

 5

 The monthly figures for the car loan and union dues payments were derived from biweekly payment amounts 

provided by appellant. 

6

 Appellant indicated that she was unmarried and supported her 17-year-old son and noted that she was the only 

person in the household who had an income. 

7

 As recovery from continuing compensation benefits under FECA is not involved in this case, the Board has no 

jurisdiction over the amount OWCP determined that appellant should repay each month. Lorenzo Rodriguez, 51 

ECAB 295 (2000); 20 C.F.R. § 10.441(a). 

8

 5 U.S.C. § 8102(a). 

9 Id. at § 8129(a). 

10 Id. at § 8116(a). 
4

was not entitled to compensation for this period. The record contains evidence which shows that 

appellant received $1,113.85 in total disability compensation for the period January 2 to 12, 2013 

to which she was not entitled.11 Therefore, OWCP properly determined that appellant received a 

$1,113.85 overpayment. 

LEGAL PRECEDENT -- ISSUE 2 

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.12 These statutory 

guidelines are found in section 8129(b) of FECA which states: “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.”13 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 from data provided by the Bureau of Labor Statistics.14 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 or her position for 

the worse.15 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.16

 11 The record contains pay documents and calculations showing that appellant received a $2,835.25 payment 

covering the period December 16, 2012 to January 12, 2013 and that the portion of this payment covering the period 

January 2 to 12, 2013 equaled $1,113.85. 

12 See Robert Atchison, 41 ECAB 83, 87 (1989). 

13 5 U.S.C. § 8129(b). 

14 20 C.F.R. § 10.436. An individual is deemed to need substantially all of his or her monthly income to meet 

current and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00. 

Assets must not exceed a resource base of $4,800.00 for an individual or $8,000.00 for an individual with a spouse 

or dependent plus $960.00 for each additional dependent. B.F., Docket No. 13-785 (issued September 20, 2013); 

see Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 

6.200.6(a) (October 2004). 

15 20 C.F.R. § 10.437(a), (b). 

16 Id. at § 10.437(b)(1). 
5

ANALYSIS -- ISSUE 2 

Appellant has not established that recovery of the overpayment would defeat the purpose 

of FECA because she has not shown both that she needs substantially all of her current income to 

meet ordinary and necessary living expenses and that her assets do not exceed the allowable 

resource base. The record reflects that she has monthly income of $3,273.12, which exceeds her 

monthly expenses of $3,106.55 by $166.57.17 As appellant’s current income exceeds her current 

ordinary and necessary living expenses by more than $50.00 she has not shown that she needs 

substantially all of her current income to meet current ordinary and necessary living expenses.18 

Because she has not met the first prong of the two-prong test of whether recovery of the 

overpayment would defeat the purpose of FECA, it is not necessary for OWCP to consider the 

second prong of the test, i.e., whether her assets do not exceed the allowable resource base. 

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.19

In connection with her appeal, appellant submitted additional information about her 

monthly expenses, but the Board cannot consider such evidence for the first time on appeal.20 

Because she has failed to establish that recovery of the overpayment would defeat the purpose of 

FECA or be against equity and good conscience, appellant has failed to show that OWCP abused 

its discretion by refusing to waive the $1,113.85 overpayment. 

CONCLUSION 

The Board finds that appellant received a $1,113.85 overpayment of compensation. The 

Board further finds that OWCP did not abuse its discretion by refusing to waive recovery of the 

overpayment. 

 17 As a July 16, 2013 prerecoupment hearing, appellant testified in detail about her monthly income, monthly 

expenses and assets. Her monthly income came solely from her salary at the employing establishment. Appellant’s 

monthly expenses were comprised of $615.00 for a mortgage; $600.00 for food; $324.00 for utilities; $108.00 for a 

cell phone; $46.27 for cable television; $46.00 for internet; $129.00 for unreimbursed dental expenses; $122.00 for 

car insurance; $120.00 for gasoline; $942.50 for a car loan; and $53.78 for union dues. 

18 See supra note 14. 

19 See William J. Murphy, 41 ECAB 569, 571-72 (1989). 

20 See 20 C.F.R. § 501.2(c). 
6

ORDER 

IT IS HEREBY ORDERED THAT the September 16, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 20, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board