United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.L., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PATROL, 

Casa Grande, AZ, Employer 

__________________________________________ 

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Docket No. 16-0295 

Issued: March 21, 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 December 4, 2015 appellant filed a timely appeal from a June 18, 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 appellant received a $1,238.43 overpayment of compensation 

for the period March 1 to 7, 2015; and (2) whether OWCP abused its discretion in denying 

waiver of recovery of the overpayment. 

On appeal appellant contends that repayment of the overpayment would cause undue 

financial hardship for him and his family as his income and resources are needed for ordinary 

 1

 5 U.S.C. § 8101 et seq. 
2

and necessary living expenses and severe medical expenses related to his son’s medical 

conditions. 

FACTUAL HISTORY 

OWCP accepted that on March 10, 2014 appellant, then a 39-year-old border patrol 

agent, sustained left Achilles tendinitis while conducting knee strikes during intermediate force 

training. It authorized microthermal topaz debridement and repair of his left Achilles tendon 

performed on October 24, 2014 and January 9, 2015, respectively. Appellant received wage-loss 

compensation for total disability on the supplemental rolls.2

On March 1, 2015 appellant returned to full-time light-duty work at the employing 

establishment. On March 9, 2015 he advised OWCP about his return to work, but he continued 

to receive compensation payment through March 7, 2015. 

By letter dated May 11, 2015, OWCP made a preliminary determination that appellant 

received an overpayment of compensation in the amount of $1,238.43 from March 1 to 7, 2015 

because he continued to receive disability compensation after his return to work. It explained the 

calculation of the overpayment and found that he was without fault in its creation. OWCP 

requested that appellant complete an overpayment recovery questionnaire (Form OWCP-20) and 

submit supporting financial documents to assist OWCP in its evaluation of appellant’s eligibility 

for waiver. Additionally, it notified him that, within 30 days of the date of the letter, he could 

request a telephone conference, a final decision based on the written evidence, or a 

prerecoupment hearing. 

Appellant did not respond to the preliminary overpayment determination. In a June 18, 

2015 decision, OWCP finalized the preliminary overpayment determination, finding that 

appellant had received an overpayment of compensation in the amount of $1,238.43 from 

March 1 to 7, 2015. It also denied waiver of recovery of the overpayment because he did not 

respond to the request to submit financial information. Thus, there was no evidence that 

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

conscience. OWCP requested that appellant repay the full amount of the overpayment within 30 

days. 

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 duty.3 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 

 2

 The Board notes that on December 4, 2014 appellant briefly returned to work, but stopped work again. 

3

 5 U.S.C. § 8102(a). 
3

law, adjustment shall be made under regulations prescribed by the Secretary of Labor by 

decreasing later payments to which an individual is entitled.”4 

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.5

 OWCP 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.6

 

A claimant is not entitled to receive temporary total disability and actual earnings for the 

same period.7 OWCP procedures provide that an overpayment of compensation is created when 

a claimant returns to work, but continues to receive wage-loss compensation.8

ANALYSIS -- ISSUE 1 

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

of $1,238.43 for the period March 1 to 7, 2015. The record supports, and appellant has not 

disputed, that he returned to full-time light-duty work on March 1, 2015, but continued to receive 

compensation from OWCP through March 7, 2015. For this period, he received compensation in 

the amount of $1,238.43. As appellant was not entitled to compensation after his return to work, 

OWCP properly found an overpayment of compensation in the amount of $1,238.43.9

LEGAL PRECEDENT -- ISSUE 2 

The waiver or refusal to waive an overpayment of compensation is a matter that rests 

within the discretion of OWCP pursuant to statutory guidelines.10 The statutory guidelines are 

found at section 8129(b) of FECA, which provides that 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 then adjustment and recovery would defeat the purpose of 

FECA or would be against equity and good conscience.11

 4 Id. at § 8129(a). 

5 Id. at § 8116(a); R.H., Docket No. 09-1981 (issued June 11, 2010). 

6

 20 C.F.R. § 10.500. 

7 See R.W., Docket No. 13-1285 (issued November 13, 2013). 

8 See Danny E. Haley, 56 ECAB 393 (2005); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, 

Initial Overpayment Actions, Chapter 6.200.2a (May 2004). 

9 Supra notes 7 and 8. 

10 See E.C., Docket No. 14-826 (issued July 3, 2014). 

11 5 U.S.C. § 8129(b). 
4

Section 10.438 of the implementing federal regulations provide that the individual who 

received the overpayment is responsible for providing information about income, expenses, and 

assets as specified by OWCP.12 This information is needed to determine whether recovery of an 

overpayment would defeat the purpose of FECA or be against equity and good conscience. The 

regulations further provide that failure to submit the requested information within 30 days of the 

request shall result in the denial of waiver and no further request for waiver shall be considered 

until the requested information is furnished.13

ANALYSIS -- ISSUE 2 

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

based on receipt of compensation after his return to full-time work. The fact that appellant is 

without fault, however, does not mean that he is entitled to waiver of recovery of the 

overpayment. OWCP advised him of the overpayment in the preliminary determination notice 

sent to him on May 11, 2015. Appellant was provided the reasons for the overpayment and the 

opportunity to submit financial information with regard to waiver. He did not respond to the 

preliminary determination or submit any information relevant to waiver within 30 days. As 

noted, the implementing regulations provide that failure to submit the requested information 

within 30 days will result in the denial of waiver.14 Since appellant did not submit any financial 

information or a completed OWCP-20 form as requested, the Board finds that OWCP properly 

denied waiver of recovery of the overpayment. 

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.15 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.16

On appeal appellant contends that repayment of the overpayment would cause undue 

financial hardship for him and his family as his income and resources are needed for ordinary 

and necessary living expenses and severe medical expenses related to his son’s medical 

conditions. As discussed, however, OWCP properly denied waiver as he failed to submit the 

requisite financial information. 

 12 20 C.F.R. § 10.438(a). 

13 Id. at § 10.438(b). 

14 Id.

15 Cheryl Thomas, 55 ECAB 610 (2004). 

16 Id. 
5

CONCLUSION 

The Board finds that appellant received a $1,238.43 overpayment of compensation for the 

period March 1 to 7, 2015. The Board further finds that OWCP did not abuse its discretion in 

denying waiver of recovery of the overpayment. 

ORDER 

IT IS HEREBY ORDERED THAT the June 18, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 21, 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