United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Crystal City, MO, Employer 

__________________________________________ 

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Docket No. 16-0144 

Issued: March 22, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On November 2, 2015 appellant filed a timely appeal from an October 20, 2015 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 the case. 

ISSUES 

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

amount of $327.64 for the periods February 7 through 12, 2015 and June 10 through 26, 2015; 

and (2) whether OWCP properly denied waiver of recovery of the overpayment. 

On appeal appellant asserts that she did not receive the preliminary overpayment 

notification. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On February 11, 2015 appellant, then a 40-year-old city carrier assistant, filed a traumatic 

injury claim (Form CA-1) alleging that on August 9, 2014 she twisted her right foot while 

delivering mail. The record indicates that she first missed work due to the injury on 

August 22, 2014. Appellant stopped work on February 6, 2015 and returned on 

February 13, 2015. 

On March 10, 2015 OWCP accepted a right ankle sprain. On April 15, 2015 it expanded 

the claim to include right enthesopathy of ankle and tarsus, right stress fracture of metatarsals, 

and osteoarthrosis of the right ankle and foot. 

Appellant underwent right foot surgery on June 10, 2015. She thereafter filed claims for 

compensation (Form CA-7’s) for the period February 5 through 12, 2015, and beginning on 

June 10, 2015 and thereafter. The employing establishment reported that appellant had worked a 

fixed 40-hour week schedule and that her base pay was $17.53 per hour. OWCP paid 

compensation for the period February 7 through 12, 2015, and for the period June 10 to 26, 2015, 

based on an hourly rate of $17.53 or a weekly rate of $701.20. 

OWCP sought additional pay rate information from the employing establishment. The 

employing establishment informed OWCP that appellant’s gross earnings for the period 

August 22, 2013 to August 21, 2014 were $29,789.46. 

A July 16, 2015 overpayment memorandum indicated that appellant’s pay rate had been 

incorrectly based on a $701.20 weekly earnings history. OWCP explained that the pay rate 

should have been calculated by obtaining appellant’s gross earnings for the year prior and 

dividing by 52 to obtain the base pay rate, noting that $29,789.46, her prior year earnings, when 

divided by 52 yielded a weekly pay rate of $572.87. It noted that for the period February 7 

through June 26, 2015 appellant received compensation of $1,717.85 when she should have 

received compensation based on a $572.87 weekly rate, or $1,390.21, which yielded an 

overpayment of compensation in the amount of $327.64. Appellant thereafter was paid 

compensation based on a weekly pay rate of $572.87. 

On July 29, 2015 OWCP issued a preliminary determination that an overpayment of 

compensation in the amount of $327.64 had been created because appellant was compensated at 

an incorrect pay rate for the periods February 7 through 12, 2015 and June 10 through 26, 2015. 

The preliminary notification was mailed to appellant’s address of record. The attached 

memorandum explained how the overpayment was calculated and explained the actions she 

could take. It found appellant not at fault in its creation, and she was provided an overpayment 

action request form and an overpayment questionnaire. Appellant was given 30 days to submit a 

response. 

Appellant returned to limited duty for 40 hours a week on September 14, 2015. 

Appellant did not reply to the preliminary determination. By decision dated October 20, 

2015, OWCP finalized the preliminary overpayment determination, finding that she received an 

overpayment of compensation in the amount of $327.64 and, while she was not at fault, she was 
3

not entitled to waiver of recovery of the overpayment because she failed to provide the requested 

information. The overpayment was to be repaid in full within 30 days or, if appellant continued 

to file for wage loss, OWCP would deduct the $327.64 from compensation. 

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.2 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.”3 

Section 8105(a) of FECA provides: “If the disability is total, the United States shall pay 

the employee during the disability monthly monetary compensation equal to 66 2/3 percent of his 

monthly pay, which is known as his basic compensation for total disability.”4

 Section 8101(4) of 

FECA defines “monthly pay” for purposes of computing compensation benefits as follows: 

“[T]he monthly pay at the time of injury, or the monthly pay at the time disability begins, or the 

monthly pay at the time compensable disability recurs, if the recurrence begins more than six 

months after the injured employee resumes regular full-time employment with the United States, 

whichever is greater....”5 OWCP’s regulations define “disability” as “the incapacity, because of 

an employment injury, to earn the wages the employee was receiving at the time of injury.”6

 

With respect to the calculation of appellant’s pay rate for compensation purposes, FECA 

provides for different methods of computation of average annual earnings depending on whether 

the employee worked in the employment in which he or she was injured substantially for the entire 

year immediately preceding the injury and would have been afforded employment for substantially 

a whole year, except for the injury.7 Section 8114(d)(1) of FECA provides: 

“Average annual earnings are determined as follows: 

(1) If the employee worked in the employment in which he was employed 

at the time of injury during substantially the whole year immediately 

 2

 5 U.S.C. § 8102(a). 

3 Id. at § 8129(a). 

4 Id. at § 8105(a). Section 8110(b) of FECA provides that total disability compensation will equal three-fourths 

of an employee’s monthly pay when the employee has one or more dependents. 5 U.S.C. § 8110(b). 

5

 5 U.S.C. § 8101(4). 

6

 20 C.F.R. § 10.5(f). 

7

 5 U.S.C. § 8114(d)(1), (2). 
4

preceding the injury and the employment was in a position for which an 

annual rate of pay -- 

(A) was fixed, the average annual earnings are the rate of pay; or 

(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 5 1/2-day week, and 

260 if employed on the basis of a 5-day week....”8

It is presumed, in the absence of evidence to the contrary, that a notice mailed to an 

individual in the ordinary course of business was received by that individual. This presumption 

arises when it appears from the record that the notice was properly addressed and duly mailed.9

 

The mailbox rule provides that proper and timely mailing of a document raises a rebuttable 

presumption of receipt by the addressee. The Board has applied the mailbox rule to claimants 

under FECA and to OWCP when it is established that the mailing was in the ordinary course of 

the sender’s business practices. It serves as a tool for determining in the face of inconclusive 

evidence, whether or not receipt has actually been accomplished. It is to facilitate the fact finder 

in determining whether receipt of a document has occurred. However, as a rebuttable 

presumption, receipt will not be assumed when there is evidence of nondelivery.10 

ANALYSIS -- ISSUE 1 

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

of $327.64. OWCP correctly determined that she was paid at an improper higher pay rate for the 

periods February 7 through 12, 2015 and June 10 through 26, 2015. In determining that 

appellant received a $327.64 overpayment, OWCP’s calculation of her proper amount of 

compensation for the periods above was in accordance with the documentation of earnings 

provided by the employing establishment. It properly noted that because appellant worked the 

entire year prior to her August 9, 2014 employment injury, her pay rate should have been 

calculated under section 8114(d) of FECA.11 Dividing appellant’s $29,789.46 gross earnings in 

the year prior to August 9, 2014 by 52 yielded a pay rate of $572.87 per week. However, during 

the periods February 7 through 12, 2015 and June 10 through 26, 2015, appellant actually 

received compensation at a higher pay rate, based on an hourly wage of $17.63 or a weekly rate 

of $701.20. 

 8 Id. at § 8114(d)(1). 

9 Cresenciano Martinez, 51 ECAB 322 (2000). 

10 M.U., Docket No. 09-526 (issued September 14, 2009). 

11 Supra notes 4 through 8. 
5

Appellant, who did not respond to the preliminary overpayment determination,12 has not 

provided evidence or argument disputing the $327.64 amount of overpayment. OWCP correctly 

determined that she received $1,717.85 in compensation for the periods February 7 through 12, 

2015 and June 10 through 26, 2015 when she was only entitled to receive compensation of 

$1,390.21. Therefore, it properly found that appellant received an overpayment of compensation 

in the amount of $327.64. 

Appellant argues on appeal that she did not receive the July 29, 2015 preliminary 

overpayment determination. As noted above, the mailbox rule provides that the appearance of a 

properly addressed copy in the case record, together with the mailing custom or practice of the 

sender, will raise a presumption that the original was received by the addressee.13 The record 

contains a properly addressed copy of the July 29, 2015 preliminary overpayment determination 

which was sent to appellant’s address of record. There is no evidence of record that the July 29, 

2015 notice was not deliverable. Appellant’s has not presented evidence to rebut a presumption 

of receipt. As such, the Board finds that the mailbox rule raises the presumption that the 

preliminary determination was received by appellant, and no evidence exists to rebut the 

presumption. 

LEGAL PRECEDENT -- ISSUE 2 

Section 8129 of FECA provides that an overpayment in compensation shall be recovered 

by OWCP unless “incorrect payment has been made to an individual who is without fault and 

when adjustment or recovery would defeat the purpose of FECA or would be against equity and 

good conscience.”14 Section 10.438 of OWCP 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 

on an overpayment would defeat the purpose of FECA or be against equity and good 

conscience.15 Failure to submit the requested information within 30 days of the request shall 

result in denial of waiver.16 

 12 See discussion infra. 

13 Supra note 9. 

14 5 U.S.C. § 8129. 

15 Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause hardship to a 

currently or formerly entitled beneficiary because: (a) the beneficiary from whom OWCP seeks recovery needs 

substantially all of his or her current income (including compensation benefits) to meet current or ordinary and 

necessary living expenses; and (b) the beneficiary’s assets do not exceed a specified amount as determined by 

OWCP from data furnished by the Bureau of Labor Statistics. 20 C.F.R. § 10.436. 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. Id. at § 10.437. 

16 20 C.F.R. § 10.438. 
6

ANALYSIS -- ISSUE 2 

As OWCP found appellant without fault in the creation of the overpayment, waiver must 

be considered and repayment is still required unless adjustment or recovery of the overpayment 

would defeat the purpose of FECA or be against equity and good conscience.17 Appellant, 

however, had the responsibility to provide financial information to OWCP,18 and did not do so. 

In its preliminary determination dated July 29, 2015, OWCP 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. As 

discussed above, the mailbox rule raised the presumption that the preliminary determination was 

received by appellant. Appellant did not submit a completed overpayment questionnaire or 

otherwise submit financial information supporting her income and expenses at any time. As a 

result, OWCP did not have the necessary financial information to determine if recovery of the 

overpayment would defeat the purpose of FECA 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 OWCP regulations, which was necessary to determine her eligibility for 

waiver, OWCP properly denied waiver of recovery of the overpayment in compensation in the 

amount of $327.64. 

With respect to recovery of the overpayment of compensation, the Board’s jurisdiction is 

limited to reviewing those cases where OWCP seeks recovery from continuing compensation 

benefits under FECA.19 As appellant is 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.20

CONCLUSION 

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

of $327.64, and that OWCP properly denied waiver of recovery of the overpayment. 

 17 Supra note 15. 

18 20 C.F.R. § 10.438. 

19 Cheryl Thomas, 55 ECAB 610 (2004). 

20 Id. 
7

ORDER 

IT IS HEREBY ORDERED THAT the October 20, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 22, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board