United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Denver, CO, Employer 

__________________________________________ 

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Docket No. 15-0487 

Issued: May 5, 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 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On January 1, 2015 appellant filed a timely appeal from a November 24, 2014 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 $1,407.78 overpayment of compensation 

for the period April 16, 2013 to June 27, 2014 due to an incorrect pay rate; (2) whether OWCP 

abused its discretion in denying waiver of the overpayment; and (3) whether OWCP properly 

recovered the amount of overpayment from appellant’s schedule award issued 

December 31, 2014. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

OWCP accepted that on February 23, 2013 appellant, then a 53-year-old mail processing 

clerk, developed bilateral carpal tunnel syndrome as a result of his federal employment duties. 

On August 6, 2013 appellant filed Forms CA-7 for compensation beginning April 13, 

2013 and continuing.2

 

In an August 14, 2013 (Form CA-110) telephone note, a claims examiner reported that 

appellant was entitled to 1.5 hours of Sunday premium for work from his 5:00 p.m. to 1:30 a.m. 

Saturday shift. 

In an August 14, 2013 pay rate memorandum, OWCP noted that appellant worked 

40 hours per week full time with the fixed schedule of Tuesday through Saturday from 5:00 p.m. 

to 1:30 a.m. Appellant’s pay rate date was noted as April 16, 2013, the date disability began, 

with an annual salary of $53,840.00. His annual salary was divided by 52 to calculate a weekly 

rate of $1,035.38. Appellant’s annual Sunday premium of $1,795.86 was divided by 52 to 

calculate a weekly rate of $34.54 a week for the 1.5 hours a week of Sunday work. The claims 

examiner noted that appellant was receiving Sunday premium because his fixed schedule shift on 

Saturday night rolled into Sunday, resulting in 1.5 hours of Sunday premium per week. 

Appellant’s weekly night differential was determined to be 10 percent of $25.88 per hour times 

35 hours a week at night differential to equal $90.60. Combining the weekly base pay rate of 

$1,035.38 to the weekly Sunday premium of $34.54 and the weekly night differential of $90.60, 

his pay rate totaled $1,160.52. 

Appellant received wage-loss compensation for temporary total disability from April 16, 

2013 to February 3, 2014, and partial disability during the period February 4 through June 27, 

2014 after he returned to part-time light-duty work.3

 

On September 24, 2014 appellant filed a claim for a schedule award (Form CA-7). 

In a preliminary determination dated October 24, 2014, OWCP found that an 

overpayment of $1,407.78 arose from April 16, 2013 to June 27, 2014, because appellant was 

paid at an incorrect pay rate. It found him without fault and explained that he should have 

received compensation based on a weekly pay rate of $1,101.76 instead of $1,160.52. OWCP 

explained that the initial weekly pay rate had included incorrect amounts for Sunday premium 

and night differential, resulting in a weekly overpayment of $58.76. It based its pay rate 

calculation on the date disability began, April 16, 2013 and noted that appellant worked a fixed 

 2

 On the reverse side of the form, the employing establishment’s human resource specialist reported that appellant 

worked 40 hours per week and stopped work on April 13, 2013. As of April 13, 2013, appellant’s base pay rate was 

$53,840.00 per year, $1,795.86 per year for Sunday premium, and $1,870.89 per year for night differential. 

3

 The Board notes that, on March 6, 2014, OWCP issued a preliminary finding that an overpayment of $630.38 

arose from January 12 to February 8, 2014 because appellant had returned to work on February 4, 2014 for four 

hours a day, but continued to receive wage-loss compensation. On March 27, 2014 OWCP informed him that it had 

received his check for $630.38 as repayment of his overpayment of compensation. Appellant’s overpayment 

account was deemed fully liquidated and administratively closed. 
3

schedule and was entitled to the same amount of Sunday premium and night differential 

regularly.4 However, the employing establishment provided a yearly amount for these premiums 

when OWCP should have requested the weekly, or hourly amounts. Moreover, OWCP 

calculated 10 percent of the night differential, but this figure was not verified by the employing 

establishment as being correct. 

Hourly rates were then obtained from the employing establishment which established an 

hourly pay rate of $6.45 for Sunday premium and an hourly rate of $1.62 for night differential. 

At $6.45 per hour for 1.5 hours per week, appellant was entitled to $9.68 weekly for Sunday 

premium. For the night differential, at $1.62 per hour for 35 hours per week, he was entitled to 

$56.70 weekly. Adding the weekly base pay rate of $1,035.38 with the new $9.68 weekly 

Sunday premium rate and $56.70 weekly night differential rate, a weekly pay rate of $1,101.76 

was obtained. A memorandum containing the calculation of the noted overpayment for the 

period April 16, 2013 to June 27, 2014, explained that appellant was paid $40,708.46 when he 

was actually entitled to $39,300.68, resulting in an overpayment of $1,407.78. Appellant was 

informed that, if he wished a waiver of the overpayment, he was to submit financial information 

and a completed overpayment recovery questionnaire (OWCP-20) within 30 days. 

On November 10, 2014 appellant contested the overpayment decision and requested a 

waiver of recovery of the overpayment. He stated that the $6.45 hourly Sunday premium and 

$1.62 hourly night differential rates were correct. However, appellant argued that he was 

entitled to 8 hours per week for Sunday premium as opposed to the 1.5 hours weekly rate 

calculated by OWCP in its overpayment decision, alleging that when any period of a daily shift 

includes Sunday premium pay, the entire daily shift is to be paid at the Sunday premium pay 

rate. No other evidence was provided and he did not submit the overpayment recovery 

questionnaire with supporting financial documentation. 

By decision dated November 24, 2014, OWCP affirmed the overpayment in the amount 

of $1,407.78 for the period April 16, 2013 to June 27, 2014, because appellant had been paid at 

an incorrect pay rate. As to his argument regarding Sunday premium pay, it noted that pay rate 

information had to be based on that furnished by the employing establishment. OWCP found 

that appellant was without fault in the creation of the overpayment, but denied waiver of 

recovery because he had failed to submit the requested OWCP-20 form and financial 

documentation to determine his income, expenses, liabilities, or funds. It requested payment of 

the full amount within 30 days.5

 4

 The senior claims examiner used April 16, 2013, the date disability began, to calculate appellant’s pay rate 

which was determined to be more than the February 23, 2013 date-of-injury rate. 

5

 By decision dated December 31, 2014, OWCP granted appellant a schedule award claim for two percent 

permanent impairment of the right upper extremity (hand) and one percent permanent impairment of the left upper 

extremity (hand). It determined that he was entitled to $6,048.66 for the period September 2 to October 23, 2014, 

but as he had an outstanding overpayment amount of $1,407.78, OWCP deducted that amount from his $6,048.66 

schedule award, resulting in a $4,640.88 schedule award. By letter dated December 31, 2014, OWCP informed 

appellant that his overpayment of $1,407.78 was withheld from his schedule award and thus, repaid in full. The 

overpayment account was deemed fully liquidated and closed. 
4

LEGAL PRECEDENT 

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.6 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.”7

An employee is paid compensation for total disability equal to a percentage of his or her 

monthly pay.8 To calculate monthly pay, the initial issue is the determination of the specific time 

when the employee’s monthly pay will be calculated. Under 5 U.S.C. § 8101(4), the monthly 

pay is determined at the time of injury, the time disability begins, or the time compensable 

disability recurs, if the recurrence begins more than six months after a return to regular full-time 

employment. 

Once the proper time period is determined, the pay rate is determined under 5 U.S.C. 

§ 8114(d). This section provides a specific methodology for determining pay rate: 

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

time of his injury during substantially the whole year immediately 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 annual rate of pay.” 

OWCP procedures further provide that night or shift differential is to be included in the 

pay rate determination and it is to also include any extra compensation for Sunday or holiday 

work paid to regular employees of the postal service.9 The procedures note that extra 

compensation for performing work on Sundays or holidays paid to regular employees of the 

postal service will be included in computing an employee’s pay rate.10 It also notes, citing 

5 U.S.C. § 5546(a), that for health professionals working for the Department of Veterans Affairs, 

extra pay is usually paid when an employee’s regular work schedule includes an eight-hour 

 6

 5 U.S.C. § 8102(a). 

7 Id. at § 8129(a). 

8 Supra note 4 at § 8106(a). 

9

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rate, Chapter 2.900.6(b)(3) 

(March 2011). 

10 Id. 
5

period, any part of which falls on a Sunday or described as being within the period commencing 

at 12:00 a.m. Saturday and ending at 12:00 a.m. Sunday.11

5 U.S.C. § 5546(a) states that “[a]n employee who performs work during a regularly 

scheduled [eight]-hour period of service which is not overtime work as defined by section 

5542(a) of this title a part of which is performed on Sunday is entitled to pay for the entire period 

of service at the rate of his basic pay, plus premium pay at a rate equal to 25 percent of his rate of 

basic pay.”12

ANALYSIS 

The Board finds that this case is not in posture for a decision. The case must be 

remanded to OWCP for further development.13

In its November 24, 2014 preliminary determination, OWCP provided a discussion of the 

amounts of premium pay appellant received annually in addition to base pay. It explained that 

the initial weekly pay rate had included incorrect amounts for Sunday premium and night 

differential, resulting in a weekly overpayment of $58.76. At $6.45 per hour for 1.5 hours per 

week, OWCP determined that appellant was entitled to $9.68 weekly for Sunday premium for 

1.5 hours of Sunday premium pay weekly because his Saturday shift spanned from 5:00 p.m. to 

1:30 a.m., establishing Sunday work from 12:00 a.m. to 1:30 a.m. 

Appellant contested the preliminary overpayment decision and stated that, although the 

$6.45 Sunday premium and $1.62 night differential hourly rates were correct, he argued that he 

was entitled to 8 hours per week for Sunday premium as opposed to the 1.5 hours used by 

OWCP. 

The Board finds that the November 24, 2014 OWCP decision failed to address 

appellant’s argument and did not provide adequate facts and findings for its determination that he 

received a $1,407.78 overpayment for the period April 16, 2013 to June 27, 2014.14 

In the November 24, 2014 decision, OWCP generally stated that appellant’s pay rate 

“must be determined according to pay rate information furnished by the employing 

establishment.” No further explanation was provided. In the absence of a detailed explanation 

as to the proper handling of Sunday premium pay the Board will remand the case to OWCP for 

 11 See supra note 9 at Chapter 2.900.6(b)(4) as it relates to health professionals working for the Department of 

Veterans Affairs. See also generally Paul W. Catalano, 24 ECAB 170 (1973). 

12 5 U.S.C. § 5546(a). 

13 A.F., Docket No. 13-1514 (issued September 25, 2014). 

14 5 U.S.C. § 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. 
6

further development of appellant’s pay rate, as to the fact, and amount of the claimed 

overpayment of compensation.15 

Upon remand, OWCP shall determine appellant’s pay rate and, after such further 

development as necessary, issue a de novo decision containing findings of fact and a statement of 

reasons. 

CONCLUSION 

The Board finds that the case is not in posture for a decision as to fact and amount of 

overpayment. 

ORDER 

IT IS HEREBY ORDERED THAT the November 24, 2014 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 the Board.16 

Issued: May 5, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 15 Given the disposition of this case, a determination on eligibility for waiver of recovery of the overpayment and 

recovery of the overpayment, by deducting the amount of overpayment from his December 31, 2014 schedule 

award, is premature. 

16 James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the 

Board effective November 16, 2015.