United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Kingsville, TX, Employer 

__________________________________________ 

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Docket No. 16-1403 

Issued: December 22, 2016 

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 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 3, 2016 appellant filed a timely appeal from a January 11, 2016 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 OWCP properly determined that appellant received an 

overpayment of compensation in the amount of $3,625.37 during the period April 1, 2014 

through February 27, 2015 for which he was not at fault; and (2) whether it properly denied 

waiver of recovery of the overpayment. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board.2 The facts of the case as set forth in the 

Board’s prior decision are incorporated herein by reference. The relevant facts are as follows. 

On May 20, 2011 appellant, then a 47-year-old city letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that he sustained an injury to his left leg as a result of duties 

of his federal employment as of May 4, 2011. On August 25, 2011 OWCP accepted his claim 

for thoracic or lumbosacral neuritis or radiculitis, left internal derangement of the knee, and left 

contusion of the lower leg. He received wage-loss compensation on the periodic rolls from 

August 30, 2012 to March 8, 2014. Appellant returned to part-time modified work on March 3, 

2014 and then received compensation on the supplemental rolls based on his partial disability. 

She filed claims for compensation (Form CA-7). By decisions dated July 21, 2014, OWCP 

denied appellant’s claims for total disability compensation on March 27, 2014 and for periods of 

total disability after April 1, 2014. On October 14, 2014 appellant appealed to the Board. In a 

March 13, 2015 decision, the Board found that OWCP had properly denied appellant’s claims for 

total disability compensation for March 27, 2014 and subsequent to April 1, 2014.3

 

In a financial worksheet dated March 11, 2015, an OWCP representative calculated what 

appellant owed for the unpaid health and life insurance premiums for the period April 1, 2014 

through February 27, 2015. He calculated that appellant owed $3,414.92 in deductions for health 

insurance premiums for the following periods: April 1 through 5, 2014; April 6, 2014 through 

January 10, 2015; January 11 through February 7, 2015; and February 8 through 27, 2015. The 

representative additionally calculated that appellant owed $210.45 for life insurance premiums 

for the following periods: April 1 through 5, 2014; April 6, 2014 through February 7, 2015; and 

February 8 through 27, 2015. 

On March 18, 2015 OWCP advised appellant that a preliminary determination that he had 

been overpaid in the amount of $3,625.37 for the period April 1, 2014 through February 27, 2015 

because it had failed to deduct health benefits or basic life insurance premiums for that period. It 

also made the preliminary determination that appellant was without fault in the creation of the 

overpayment because appellant was not aware nor could he reasonably be expected to know that 

OWCP had paid compensation incorrectly. OWCP provided appellant 30 days to challenge the 

proposed overpayment, request a telephonic conference, and to submit financial information. 

On March 22, 2015 appellant requested a prerecoupment hearing before an OWCP 

hearing representative on the issue of his overpayment. He stated that the overpayment was not 

his fault, and noted that he also disagreed that the overpayment occurred and with its amount. 

With his request, appellant completed an overpayment recovery questionnaire (Form 

OWCP-20), which noted no monthly income, along with a rent payment of $723.00 per month; 

food costs of $400.00 per month; clothing costs of $300.00 per month; utility expenses of 

$500.00 per month; loan expenses of $75.00 per month; and other expenses of $727.00 per 

 2

 Docket No. 15-0071 (issued March 13, 2015). 

3 Id. 
3

month. He claimed no cash on hand, no savings account balance, no current value of stocks or 

bonds, no value of personal property, and $500.00 of debt to his checking account balance. 

Appellant also claimed that OWCP had underpaid him.4

The hearing was held on October 16, 2015. Appellant noted to the hearing representative 

that he had retirement income of roughly $1,400.00 per month. He noted that he had two 

teenage daughters who did not work and attended school. Appellant verified that he had rent of 

$723.00 per month, with utilities of $90.00 to $100.00 per month. He noted that he spent 

roughly $400.00 per month on food and nothing on clothing. Appellant speculated that he might 

have a Thrift Savings Plan, but that he had not used it. The hearing representative explained that 

he would send another financial information form for appellant to complete. 

On November 11, 2015 appellant submitted a corrected overpayment recovery 

questionnaire, noting monthly income from social security benefits of $1,954.00 and benefits 

from OPM of $990.88. He recorded no other sources of income. Appellant noted monthly costs 

of $566.75 in rent, $500.00 in food, $200.00 in clothing, $429.00 in utilities, and other expenses 

of $887.00 per month. He also noted an extra $50.00 per month under “other expenses” and 

$150.00 per month for “necessities.” Appellant noted that he had no funds whatsoever other 

than $2.00 in his checking account. 

By decision dated January 11, 2016, OWCP finalized the preliminary determination and 

found that appellant received a $3,625.37 overpayment of compensation. It found that appellant 

was without fault in the creation of the overpayment, but that he was not eligible for waiver of 

recovery, as the figure reported established that appellant retained at least $300.00 to $400.00 per 

month after paying his monthly living expenses. OWCP noted that, while appellant had reported 

$1,954.20 per month from social security benefits, the statement he provided from social security 

indicated that his monthly payment would be $2,107.00 each month after September 23, 2015. It 

found that his monthly income was $2,107.00 in social security benefits plus $990.88 from OPM 

retirement benefits, for a total of $3,097.88 in monthly income. OWCP found that his monthly 

expenses included $566.75 in rent, $500.00 in food, $200.00 in clothing, $429.00 in utilities, and 

$887.00 in other expenses, for a total of $2,582.75 in monthly expenses. It found that the 

overpayment should be repaid through payments of $200.00 every 28 days based on these 

figures. 

LEGAL PRECEDENT -- ISSUE 1 

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.5 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.6

 4

 Appellant elected Office of Personnel Management (OPM) retirement benefits as of June 29, 2015. 

5 Id. at § 8102(a). 

6 Id. at § 8129(a). 
4

Under Federal Employees’ Group Life Insurance, most civilian employees of the Federal 

Government are eligible to participate in basic life insurance and one or more of the options. 

When an under withholding of life insurance premiums occurs, the entire amount is deemed an 

overpayment because OWCP must pay the full premium to OPM upon discovery of the error.7

The Board has similarly 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.8

ANALYSIS -- ISSUE 1 

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

for the period April 1, 2014 through February 27, 2015. An overpayment occurred due to the 

nonrecovery of these health and life insurance premiums. OWCP provided a worksheet 

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

owed $3,414.92 in deductions for health insurance premiums for the following periods: April 1 

through 5, 2014; April 6, 2014 through January 10, 2015; January 11 through February 7, 2015; 

and February 8 through 27, 2015. OWCP further calculated that the government owed 

$10,245.35 for the same period. It additionally calculated that appellant owed $210.45 for life 

insurance premiums for the following periods: April 1 through 5, 2014; April 6, 2014 through 

February 7, 2015; and February 8 through 27, 2015. The amount of the overpayment was, 

therefore, $3,414.92 in health insurance premiums and $210.45 in life insurance premiums, for a 

total of $3,625.37. 

The Board finds that an overpayment of compensation was created in the amount of 

$3,625.37 due to underwithholding of health insurance and life insurance premiums. 

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.9

 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.10 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.11

 7 See J.H., Docket No. 15-1385 (issued October 27, 2015). 

8 James Lloyd Otte, 48 ECAB 334 (1997).

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

10 5 U.S.C. § 8129(b). 

11 M.G., Docket No. 14-1917 (issued January 22, 2015). 
5

Section 10.438 of OWCP’s regulations provides 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 FECA or be against equity and good conscience. This 

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

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.12

ANALYSIS -- ISSUE 2 

OWCP found appellant to be without fault in creating the overpayment. The issue is 

whether recovery of the overpayment would defeat the purpose of FECA or be against equity 

and good conscience. OWCP provided appellant with an OWCP-20 form and requested in the 

March 18, 2015 preliminary determination that he submit supporting financial documentation 

with respect to his monthly income and expenses. Appellant was notified of the provisions of 

20 C.F.R. § 10.438. 

Appellant provided a corrected overpayment recovery questionnaire on November 11, 

2015 and clarified his financial situation at the prerecoupment hearing. Based on his testimony 

and information from the overpayment recovery questionnaire, OWCP’s hearing representative 

found that appellant had monthly income of $3,097.88 and monthly expenses of $2,582.75, for a 

total monthly surplus of $515.13. As such, the hearing representative found that appellant had 

sufficient surplus monthly income remaining to pay the overpayment and denied waiver. 

The Board finds that OWCP properly denied waiver. OWCP did not abuse its discretion 

in finding that recovery of the overpayment would not defeat the purpose of FECA or be against 

equity and good conscience.13 Pursuant to 20 C.F.R. §§ 10.436 and 10.438, it may properly deny 

waiver of the overpayment. For this reason, OWCP properly denied waiver in conformance with 

the implementing federal regulations. 

CONCLUSION 

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

of $3,625.37 for which he was not at fault. The Board further finds that OWCP properly denied 

waiver of recovery. 

 12 20 C.F.R. § 10.438. 

13 See D.I., Docket No. 13-469 (issued July 1, 2013). See also N.R., Docket No. 12-1853 (issued June 10, 2013). 
6

ORDER 

IT IS HEREBY ORDERED THAT the January 11, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: December 22, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board