United States Department of Labor 

Employees’ Compensation Appeals Board 

N.G., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Yazoo City, MS, Employer 

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Docket No. 15-48 

Issued: May 22, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 7, 2014 appellant filed a timely appeal from a September 29, 2014 decision 

of the Office of Workers’ Compensation Programs (OWCP).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. 

ISSUES 

The issues are: (1) whether appellant received an overpayment of compensation in the 

amount of $615.52, because life and health insurance premiums were not made during the period 

January 15 through March 11, 2012; (2) whether it properly denied waiver of the overpayment; 

and (3) whether OWCP properly determined to recover the overpayment at by withholding 

$615.52 from his continuing compensation payments. 

 1

 The record contains a September 29, 2014 schedule award decision, which is proceeding separately under 

Docket No. 15-864. The record also contains a September 19, 2014 decision denying modification of a loss of 

wage-earning capacity determination. Appellant has not appealed the September 19, 2014 decision. 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

OWCP accepted that on December 25, 2006 appellant, then a 32-year-old correctional 

officer, sustained an injury to his right elbow in the performance of duty. It accepted the claim 

for right elbow coronoid fractures with tears of the medial and collateral ligaments, and 

postoperative heterotopic calcification of the right elbow. Appellant stopped work on the date of 

injury, returned to work on February 11, 2007, and thereafter received total disability wage-loss 

compensation from May 16, 2008 to November 20, 2010. Thereafter, he received wage-loss 

compensation based on his wage-earning capacity.3

 Deductions for the appropriate health 

benefits premium, basic life and optional life insurance premiums were made.

In a January 13, 2012 decision, OWCP suspended appellant’s compensation, effective 

January 15, 2012 on the grounds that he refused to attend a second opinion examination. The 

record reflects that appellant’s compensation was suspended for the period January 15 through 

March 11, 2012. Appellant’s wage-loss compensation resumed, effective March 12, 2012, when 

he attended the rescheduled second opinion examination, on March 28, 2012. 

On August 20, 2014 OWCP determined that, from January 15 to March 11, 2012, health 

and life insurance premiums were not recovered when appellant’s compensation was reinstated 

following his attendance at the second opinion medical examination. It determined that an 

overpayment for the benefits occurred. OWCP provided a work sheet which revealed that for the 

period January 15 through March 11, 2012, appellant was provided with the payments for health 

and life insurance premiums to prevent a cancellation and break in service. It determined that 

health insurance premiums for January 15 through March 11, 2012 were $536.33; basic life 

insurance premiums were $37.25; and optional life insurance premiums were $41.94. OWCP 

determined that appellant received benefits in the amount of $615.52 and was responsible for this 

amount paid on his behalf while his compensation was suspended. 

On August 22, 2014 OWCP made a preliminary finding that appellant received a $615.52 

overpayment of compensation because health and life insurance premiums were not made during 

the period in which his benefits were suspended. It found that he was not at fault in the creating 

the overpayment because he was not aware or reasonably aware that OWCP paid for the 

premiums while his compensation was suspended.4

 OWCP advised appellant that the deductions 

for these benefits would have to be repaid from his compensation, which was restarted. It 

informed appellant of his right to challenge the amount of the overpayment or request a waiver 

of the overpayment by one of three methods including a request for a telephone conference, a 

request for a written review of the record, or a request for a prerecoupment hearing. If appellant 

wished a waiver of the overpayment, he was specifically directed to submit financial information 

 3

 In a November 5, 2010 wage-earning capacity decision, effective November 21, 2010, OWCP reduced 

appellant’s compensation to reflect his ability to earn wages in the selected position of radio dispatcher. On 

September 19, 2014 it modified the November 5, 2010 decision to reflect appellant’s actual earnings as a Veterans’ 

service representative. 

4

 OWCP actually indicated that appellant was at fault. However, this appears to be a typographical error as he 

was provided with the overpayment recovery questionnaire and the decision on September 29, 2014 finds him 

without fault. 
3

by completing an overpayment recovery questionnaire. He was allotted 30 days to submit the 

requested information. Appellant did not respond. 

By decision dated September 29, 2014, OWCP finalized its preliminary determination 

finding that appellant had received an overpayment of compensation in the amount of $615.42, 

for which he was not at fault, but that he was not entitled to waiver of recovery of the 

overpayment. It directed that recovery would be made from appellant’s continuing 

compensation payment. OWCP indicated that the amount of $615.42 would be withheld from a 

payment on October 18, 2014. 

LEGAL PRECEDENT -- ISSUE 1 

Section 8129(a) of FECA provides that when an overpayment has been made to an 

individual under this subchapter because of an error of fact or law, adjustment shall be made 

under regulations prescribed by the Secretary of Labor by decreasing later payments to which an 

individual is entitled.5

 

The Office of Personnel Management (OPM), rather than OWCP, has jurisdiction over 

the matter of health insurance deductions from compensation and enrollment under the Federal 

Employees’ Health Benefits (FEHB) Program.6 OPM regulations regarding the FEHB Program 

provide that an employee or annuitant is responsible for payment of the employee’s share of the 

cost of enrollment for every pay period during which the enrollment continues. In each pay 

period for which health benefits withholdings or direct premium payments are not made but 

during which the enrollment of an employee or annuitant continues, he or she incurs an 

indebtedness due the United States in the amount of the proper employee withholding required 

for that pay period.7 The regulations further provide that an agency that withholds less than or 

none of the proper health benefits contributions from an individual’s pay, annuity or 

compensation must submit an amount equal to the sum of the uncollected deductions and any 

applicable agency contributions required under 5 U.S.C. § 8906 to OPM for deposit in the 

Employees’ Health Benefits Fund.8

 The Board has recognized that, when an under withholding 

of health insurance premiums is discovered, the entire amount is deemed an overpayment of 

compensation because OWCP must pay the full premium to OPM when the error is discovered.9

 

Under the Federal Employees’ Group Life Insurance Program (FEGLI), most civilian 

employees of the Federal Government are eligible to participate in basic life insurance and one 

or more of the options.10 The coverage for basic life insurance is effective unless waived11 and 

 5

 5 U.S.C. § 8129. 

6 See Raymond C. Beyer, 50 ECAB 164 (1998). 

7

 5 C.F.R. § 890.502(b)(1). 

8 Id. at § 890.502(d); see John Skarbek, 53 ECAB 630 (2002); Jennifer Burch, 48 ECAB 633 (1997). 

9 D.D., Docket No. 14-572 (issued June 9, 2014). 

10 5 U.S.C. § 8702(a). 

11 Id. at § 8702(b). 
4

the premiums for basic and optional life coverage are withheld from the employee’s pay.12 

While the employee is receiving compensation under FECA, deductions for insurance are 

withheld from the employee’s compensation.13 When an under withholding of life insurance 

premiums occurs, the entire amount is deemed an overpayment of compensation because OWCP 

must pay the full premium to OPM upon discovery of the error.14

ANALYSIS -- ISSUE 1 

The record reflects that OWCP failed to recover the health and life insurance premiums 

that were paid during his suspension for refusing to attend a medical appointment for the period 

January 15 through March 11, 2012. An overpayment occurred as his health and life insurance 

payments were not recovered when appellant’s compensation was reinstated. OWCP provided a 

worksheet explaining how the overpayment was calculated for this time period. It revealed that 

appellant was provided with the payments for health and life insurance premiums to prevent a 

cancellation and break in service. OWCP determined that health insurance premiums for 

January 15 through March 11, 2012 were $536.33; basic life insurance premiums were $37.25; 

and optional life insurance premiums were $41.94. The Board finds that an overpayment was 

created in the amount of $615.52 due to the payment of the health and life insurance premiums 

while his compensation was suspended. 

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.15 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.16 When a claimant is found to 

be without fault in the matter of the 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.17

Section 10.438 of OWCP’s regulations provide that 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 the FECA or be against equity and good conscience. 

This information will also be used to determine the repayment schedule, if necessary. Failure to 

 12 Id. at § 8707. 

13 Id. at § 8707(b)(1). 

14 Id. at § 8707(d); see Keith H. Mapes, 56 ECAB 130 (2004); James Lloyd Otte, 48 ECAB 334 (1997). 

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

16 5 U.S.C. § 8129(b). 

17 M.G., Docket No. 14-1917 (issued January 22, 2015). 
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submit the requested information within 30 days of the request shall result in denial of waiver, 

and no further request for waiver shall be considered until the requested information is 

furnished.18 

ANALYSIS -- ISSUE 2 

OWCP properly determined that appellant did not establish entitlement to waiver of the 

overpayment under the relevant standards, as appellant failed to provide any financial 

information within the appropriate time period to show that he was entitled to waiver of the 

overpayment. He did not complete and submit the financial information questionnaire within 30 

days of the August 22, 2014 preliminary overpayment notice as requested. Because appellant 

did not comply with section 10.438 of OWCP’s regulations, he is not entitled to waiver of 

recovery of the $615.52 overpayment. 

LEGAL PRECEDENT -- ISSUE 3 

OWCP’s implementing regulations provide that, if an overpayment of compensation has 

been made to an individual entitled to further payments and no refund is made, OWCP 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.19 

ANALYSIS -- ISSUE 3 

As stated above, appellant did not submit an overpayment recovery questionnaire or other 

financial information as OWCP requested prior to the final September 29, 2014 overpayment 

decision. Regarding recovery of an overpayment, when an individual fails to provide requested 

financial information, OWCP should follow minimum collection guidelines designed to collect 

the debt promptly and in full.20 As appellant did not submit the financial information requested 

by OWCP, the Board finds that there is no evidence in the record to show that the recovery rate 

of $615.52 from the continuing compensation payment on October 18, 2014 is unreasonable. He 

has not shown that OWCP improperly required withholding this amount from his continuing 

compensation payments. 

On appeal appellant argued that he did not receive due process with regard to the 

overpayment. He indicated that the only notification he received was related to the wage-earning 

capacity decision. The Board has found that a notice properly addressed and duly mailed to an 

individual in the ordinary course of business is presumed to have been received by that 

individual.21 The Board notes that there is no evidence in the record that he did not receive the 

 18 20 C.F.R. § 10.438. 

19 Id. at § 10.441(a). 

20 Frederick Arters, 53 ECAB 397 (2002); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial 

Overpayment Actions, Chapter 6.200.4(c)(2) (May 2004). 

21 See Newton D. Lashmett, 45 ECAB 181 (1993). 
6

preliminary notice which was sent to his address of record. Appellant may submit evidence or 

argument with a written request for reconsideration within one year of this merit decision 

pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

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

$615.52, because life and health insurance premiums were not made during a suspended period 

of compensation for the period January 15 through March 11, 2012. The Board also finds that 

OWCP properly denied waiver of the overpayment; and properly determined to recover the 

overpayment at the rate of $615.52 from his continuing compensation payments. 

ORDER 

IT IS HEREBY ORDERED THAT the September 29, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 22, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board