United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.Y., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Tonawanda, NY, Employer 

__________________________________________ 

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Docket No. 15-0751 

Issued: September 2, 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 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On February 18, 2015 appellant filed a timely appeal of a January 29, 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 this case. 

ISSUES 

The issues are: (1) whether OWCP properly found that an overpayment in compensation 

in the amount of $1,068.63 had been created because appellant received compensation for the 

period March 26 to April 5, 2014 after he returned to work; and (2) whether OWCP properly 

denied waiver of recovery of the overpayment. 

FACTUAL HISTORY 

On June 25, 2012 appellant, then a 43-year-old city carrier, filed a traumatic injury claim 

alleging that on that day while performing his duties he sustained a left elbow injury when he fell 

 1

 5 U.S.C. § 8101 et seq. 
2

and hit concrete while trying to keep a dog away. OWCP accepted the claim for left elbow 

contusion and right superficial avulsion index finger. Appellant’s claim was subsequently 

expanded to include left closed fracture oleocranon ulna process and right open wound finger 

without complications. 

By decision dated November 5, 2013, OWCP accepted appellant’s claim for a recurrence 

of disability beginning May 16, 2013. In a separate letter dated November 5, 2013, it authorized 

left elbow surgery, which occurred on December 31, 2013. 

On January 30, 2014 OWCP accepted appellant’s recurrence of disability claim 

beginning December 31, 2013 based on a December 31, 2013 surgical report. 

By letter dated February 24, 2014, OWCP placed appellant on the periodic rolls for 

temporary total disability. It noted the first regular payment was for the period February 9 to 

March 8, 2014. 

Appellant returned to full-duty work on March 26, 2015. 

An April 2, 2014 computer printout shows that a check was sent to appellant for payment 

of wage-loss compensation for the period March 9 to April 5, 2014. 

On April 2, 2014 OWCP informed appellant of its preliminary determination that he 

received an overpayment of compensation in the amount of $1,068.63, because he had been paid 

in error for the period March 26 to April 5, 2014. It noted that he had returned to work on 

March 26, 2014 with no loss of wages, but continued to receive compensation for total disability. 

OWCP found that appellant was without fault in the creation of the overpayment. It requested 

that he complete an overpayment recovery questionnaire and submit supporting financial 

documents. Additionally, OWCP notified appellant that, within 30 days of the date of the letter, 

he could request a telephone hearing, a final decision based on the written evidence, or a 

prerecoupment hearing. 

On April 7, 2014 appellant requested a telephonic hearing before an OWCP hearing 

representative. He submitted a completed overpayment recovery questionnaire form stating that 

he had a total monthly income of $3,700.00 and monthly expenses of $4,050.00. Appellant 

indicated that he had $50.00 cash on hand and $1,500.00 in a checking account, and $500.00 in a 

savings account. Under expenses, he listed $1,100.00 for rent/mortgage, $550.00 for food, 

$200.00 for clothing, $900.00 for utilities, and $800.00 for other debts. No supporting financial 

documentation was submitted. 

At the November 12, 2014 telephonic hearing, appellant testified that it would be a 

hardship to repay the overpayment. At the hearing he testified that his monthly income was less 

than it had been because he was not working a lot of overtime due to his elbow pain. Appellant 

testified that his monthly income was between $2,500.00 and $2,700.00. Next he provided 

testimony regarding his expenditures and assets. An OWCP hearing representative instructed 

appellant to submit supporting financial documentation for the claimed expenditures. No 

additional evidence was received. 

By decision dated January 29, 2015, an OWCP hearing representative finalized the 

preliminary determination that an $1,068.63 overpayment was created. She found that appellant 
3

was eroneously paid wage-loss compensation for the period March 26 to April 5, 2014 after 

appellant returned to work on March 26, 2014. The hearing representative found appellant was 

without fault in the creation of the overpayment, but denied waiver of recovery of the 

overpayment as appellant failed to submit any supporting financial documentation. 

LEGAL PRECEDENT -- ISSUE 1 

Section 8116 of FECA defines the limitations on the right to receive compensation 

benefits. This section of FECA provides that, while an employee is receiving compensation, he 

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

limited circumstances.2

 Section 10.500 of Title 20 of the Code of Federal Regulations provide 

that compensation for wage loss due to disability is available only for any periods during which 

an employee’s work-related medical condition prevents him or her from earning the wages 

earned before the work-related injury. 

ANALYSIS -- ISSUE 1 

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

of $1,068.63 because he had been paid in error for the period March 26 through April 5, 2014. 

Appellant returned to full-time work on March 26, 2014 but continued to receive compensation 

for partial disability from OWCP through April 5, 2014. As he received regular full-time wages 

from the employing establishment from March 26 to April 5, 2014, appellant was not entitled to 

disability compensation from OWCP for this same period. OWCP determined that the amount 

of compensation that appellant had received for the period totaled $1,068.63. Appellant has not 

challenged the amount and period of the overpayment. 

LEGAL PRECEDENT -- ISSUE 2 

According to section 10.436,3 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 current 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.4

 For waiver under 

this standard, appellant must meet the two-pronged test and show that he both needs substantially 

 2

 5 U.S.C. § 8116(a). 

3

 20 C.F.R. § 10.436. 

4

 OWCP procedures provide that 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. Federal 

(FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a) 

(October 2004). 
4

all of his current income to meet current ordinary and necessary living expenses,5

 and that his 

assets do not exceed the resource base.6 

The burden is on the claimant to show that the expenses are reasonable and needed for a 

legitimate purpose.7 OWCP’s regulations provide: 

“(a) 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.... 

“(b) 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.”8

ANALYSIS -- ISSUE 2 

OWCP determined that appellant was without fault in the creation of an overpayment of 

$1,068.63 for the period March 26 through April 5, 2014. 

The Board notes that appellant did not dispute the fact of overpayment or the amount of 

overpayment. OWCP requested in a preliminary notice of overpayment dated April 2, 2014 and 

at the telephonic hearing held on November 12, 2014 that he provide financial information to 

support the claimed expenses. Appellant failed to provide any financial information supporting 

his claimed expenses for OWCP to determine whether waiver of the overpayment was 

appropriate. The burden is on the claimant to show that waiver would defeat the purpose of 

FECA or would be against equity and good conscience. Because appellant has not shown that 

recovery would defeat the purpose of FECA or would be against equity and good conscience, the 

Board finds that OWCP properly denied waiver of recovery of the overpayment. 

On appeal appellant requests additional time to prove his claim of hardship. The 

regulations mandate that the failure to submit requested information results in the denial of 

waiver of the overpayment.9

 Appellant failed to provide OWCP with supporting financial 

documentation as requested. Thus, OWCP properly denied his request for waiver of recovery of 

the overpayment. 

 5

 An individual is deemed to need substantially all of his or her income to meet current ordinary and necessary 

living expenses if monthly income does not exceed monthly expenses by more than $50.00. Desiderio Martinez, 55 

ECAB 245, 250 (2004). 

6 See supra note 4. W.F., 57 ECAB 705 (2006). 

7 Id. 

8

 20 C.F.R. § 10.438. See Madelyn Y. Grant, 57 ECAB 533 (2006).

9 Id. 
5

CONCLUSION 

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

of $1,068.63 for the period March 26 through April 5, 2014 because he received compensation 

from OWCP after he had returned to work. The Board further finds that OWCP properly denied 

waiver of recovery of the overpayment. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated January 29, 2015 is affirmed. 

Issued: September 2, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board